Page images
PDF
[ocr errors]
[graphic]

meeting only, and we have already noticed the only provision we find in the Act of 1869 relating to transfers. It appears to us also that the language of sub-section (4) is too clear to admit of being limited in the way held by the court. Indeed, the fair import of the language does not appear to have been doubted, but the court seem to have felt justified in putting on it a forced construction, saying “ it would seem unnatural to infer that previous statutory fetters upon disnllowance or refusal were, by a side wind, to be abolished.” Sub-section (5) of section 4, strangely enough, was not referred to by the court in the judgment.

Supposing even the court to be right in their construction of section 19 of the Act of 1869, and of section 4, sub-section (4), of the Act of ISTO, it appears to us that the decision arrived at is not helped, as sub-section (5) is, we think, alone suflicient to give to the justices unqualified discretion. That sub-section applies, as we have seen, the provisions of 9 Geo. 4, c. 61, relating to transfers, and it is quite clear that those provisions give unqualified discretion to the justices at special sessions. This suficiently appears from The Queen v. Jloorv and others, Justices of Hertford (7 Q. B. D. -542), before Grove, Lindley, and Stephen, JJ., a case decided in 1881, which arose upon section 15 of the Licensing Act, 1874, enabling the owner of premises. where the licensed person has forfeited his licence by reason of having been convicted of any of the offences there specified, to apply at special sessions for a licence, and making applicable the provisions of 9 Geo. 4, c. 61, with respect to the grant of licences at special sessions. It was there held that the discretion of the justices under section 14 of 9 Geo. 4, c. 61 (the enactment conceming transfers), was unquestionable, and that the justices had not less discretion under section 15 of the Act of 1874.

The decision just noticed is not only of value as shewing the effect of 9 Geo. 4, c. 61, s. 14, but also as shewin the effect of an application of that enactment in another Act, and it is remarkable that it was apparently not referred to in the case we are discussing. Indeed, the circumstances in The Queen v. Moore seem to us so analogous to those in the present case, that the decision appears to be quite

in point to shew that the discretion of the 'ustices at s cial sessio '

ns with respect to the transfer of beerhouse dertificates if unqualified, there being nothing in the Act of 1870 to qualify the application of the provisions as to transfer of 9 Geo. 4, c. 61, except indeed sub-section (4), by which, it appears to us, the Legislature meant to make it clear that the justices at special sessions are to have unqualified discretion.

Referring to section 7 of the Act of 1870, above noticed, restricting to certain grounds the refusal of an application at the annual licensing meeting in respect of a renewal of a licence by a transferee of the licence, we may remark that it does not seem to us that there is any inconsistency between the justices at the annual licensing meeting being thus restricted, and there being an unrestricted discretion in the justices at special sessions to refuse a transfer ; it may well, we think, be conceived that the Legislature, while securing to the original licensee, or to a person who has, by the authority of the justices at special sessions, become a transferee, the right to renewal, may have intended to give full discretion to the justices as to allowmg a transfer; and even if there were such inconsistency, it is surely 8 matter for legislative interference, and not to be got over by a strained interpretation of clear enactments.

We may add that, as regards the transfer of a certificate for an off-licence, no argument for limiting the discretion of justices at special sessions can at this day be adduced, since, by 45 & 46 Vict. c. 34, the restrictions in section 8 of the Act of 1869, on the refusal of a certificate for an off-licence, are virtually repealed.

REVIEWS. THE YEAR BOOKS.

Yam Books or run Rams or KING Eowsun rm-1 THIRD. Ynsns XIII. and XIV. Edited and translated by LUKE QWEN PIKE, Barrister-at-Law. (RoLLs Saunas.)

This excellent volume is another contribution towards the work of relieving us from the national reproach, that we treat with supine neglect our unequalled stores of historical and legal documents. The design of the series is to publish those year books which have hitherto remained unedited, though many of the cases reported were known to the profession b means of abstracts of them contained 111 the old abridgments and, other early authorities. The industry, learning, and ability of the editor, Mr. Pike, are worthy of very high guise, and we venture to indulge a hope that, when he has brought

s present arduous undertaking to a successful conclusion, his talents may be employed in illustrating a new edition of the old year books commonly so called. We have some reason to suppose that the hope of such anew edition may be not altogether visionary; and to the

[ocr errors]
[graphic]

greater attractions than the series now in pro ess. Mr. Pike,
besides giving us a good critical text, formed by cofidtion of the best
attainable manuscripts, has been at the pains to compare the report
with_ the record whenever the latter could be identified, and to give
specific references to the cases cited by Fitzherbert and the old
authorities. The introduction which he has prefixed to the volume
is filled with the most interesting matter. Among the topics there
treated we would draw especial attention to the dissertation upon
the origin and gradual spread of surnames (pp. lxxviii.—lxxxiv.). We
shall owe to Mr. Pike a lasting debt of gratitude for having unravelled
to us the mysteries of such names as Thomas Richardesheyward Pyke.

[graphic][merged small]

THE PRINCIPLES or rm: Law or Burma or HEREDITAMENTS IN run OCCUPATION or Coimivrns. By J . H. Bsnrowa BROWNE, Q.C. Srcoim EDITION. By the Airraon and D. NORMAN M‘NAUGHTON, Barrister-at-Low. Stevens 8: Haynes.

This work retains the leading features of the former edit:ion—long extracts from judgments and elaborate comment and criticism upon them. We do not know that we are entitled to complain of the adoption of this method, though our own view is strongly against it. W'e entirely agree with the author (p. 189) that “ it is well to weigh decisions and not count them”; but we may venture to point out that, in order to render a book of service to practitioners, the decisions should be fairly weighed, and not considered with a view of ascertainin how far there can be extracted from them some confirmation of fie opinions of the writer. In the discussion of the Hang]:-’e_y cuae (L. R. 1 Q. B. 666), which still occupies a large space in the book, we think that this essential has hardly been sufiiciently borne in mind. The recent cases on the branch of the subject of rating treated of in the book will be found stated and discussed, and an appendix contains three unreported cases.

SNELUS EQUITY.

THE PRINCIPLES or Eourrv, mnxnnn roe TIIE vsn or Sruoaxrs AND THE PROFESSION. By Eonrmn H. '1‘. SNELL, Barrister-ab Law. EIGHTH EDITION. By Aac1IinALD Bnowx, Barrister-atLaw. Stevens 8: Haynes.

The feature of the present edition of Snell is the omission of the “Epitome of Equity Practice " and the amplification of several of the chapters. The change, we think, is judicious, and the additions, so far as we have checked them, are useful. We _would suggest, however, that if the Bills of Sale Acts are to be noticed at all, it would be better to insert a somewhat fuller and more clearlyarranged account of them than is given at pp. 403-—5; that a good deal of condensation might be usefully effected in the chapter relating to “Trustees and Others standing in a Fiduciary Relation,” and that it would tend to the advantage of studentsto have the leading rules as to the duty of a trustee shortly stated m the form of subheadings prefixed to the different divisions of the chapter.

[graphic]

CORRESPONDENCE. THE INCORPORATED LAW SOCIETY’S CALENDAR. [To the Editor qf the Solicitors’ JournaI.]

Sir,-—Why willnot the Council of the Incorporated Law Society adopt the plan which I advocated in a paper I read at the Beth Provincial Meeting, and which is in_print, wherein I shewed how. at no extra expense or trouble, the Society's Calendar and the Lu List might both be published on the lst oi January yearly, §Y}d~ bf 9" ‘mo? that there was no break in the currency of a soliciltor smpnpim stamped certificate? All that was required was a slig tdaR ra ion in the existing statute upon the matter, which the In B1111 fivgnllfi Commissioners, in their oflicial letter to 1116. Qmted t °Y a “° objection to introduce if put m motion by _the society. _ 88

If the thing is to be done so as to comeinto opergtion in 18Re;7n<1:Z is the time to try and get the alteration introduce iii fill? i Bill of this session, otherwise the oppol'l7\1mtY W111 be ° 0' ‘mo Uye“ J oun Minn.

Bristol, Feb. 21.

[ocr errors][ocr errors]
[ocr errors][ocr errors][subsumed][graphic]
[graphic]
[graphic]
[graphic]

CASES OF THE WEEK.

[merged small][ocr errors]

On May 1, 1884, the plaintiffs deposited a quantity of cigars with the defendants as secruity for a debt of £600 for cigars supplied by the defendants to the plaintiffs. At this time the plaintiffs owed the defendants another sum of £280 for other cigars supplied. _Ou the 6_th of November, 1884, the plaintiff company went into liquidation. Previously to this date the plaintiff company had paid ofif £400 of the £600 debt, and subsequently thereto the liquidator paid off the remaining £200, and brought this action in detinue to recover the cigars. The defendants contended that they were entitled, under section 33 of the Bankruptcy Act, 1883, to set off against the value of the cigars the unpaid debt of £280, asbeing “mutu dealings” within the meaning of that section, section 10 of the Judicature Act, 1875, having applied the rules in bankruptcy on this point to companies in liquidation whose assets were insuflicient to meet their liabilities. Mathew, J ., found that the value of the cigars was £135, and that, as his judgment would only give the plaintiffs the value of the cigars, section 38 ap lied, and the defendants werealeiititled to set off t o £280 against this sum. The liquidator a pe e .

PTHB Coons allowed the appeal. Lord ESHER, M.R., said the claim was for the recovery of the cigars wrongfully withheld by the defendants from the plaintifis. The defendants claimed that they should not be bound to return the cigars, but that there were mutual dealings between the parties which entitled them to set off their claim of £280 against the value of the cigars. By section 158 of the Companies Act, 1862, any claim sounding only in damages was provable in a liquidation. In this case there were “ mutual dealings ” on both sides within section 38 ; on one side security given for money due, and on the other side a sale of goods creatingaa debt. But the section required that an account should be taken of w t was _due from one party to the other, and the balance struck. The mutual dealings, therefore, must be such that an account could be taken in the way mentioned. Section 38 ought to be construed as widely as possible so as to include all claims that would result in a money claim on both sides. .J_{ers_ey Sleal Go. v. Nag/lor (31 W. It. 80, 9 Q. B. D. 643) su ported this view. But the judgment in detinue at common law was fldr the return of the goods if possi le, and if not for their value. The value was_only in the alternative. The writ to the sheriff, following the form of thejudgment, was tliat_he should seize the very goods claimed and deliver them up to the plaintiff, or if he could not then he was to seize other goods for their_value. The Common Law Procedure Act, ‘l854, and ord: 48, r. 1, did not_alter the nature of the judgment in an action of defimlle. but gave the judge power to make a special order. That being so, Mathew, J ., had no right to supersede that judgment and compel the plaintiffs to take the value of the cigars. An account, therefore, could n_ot be taken, as there was a money claim on one side and a claim to cigars on the other. Hence, though there were mutual dealings, they did not end in an account that could be taken within section 38. The plaintiffs, therefore, were entitled to the cigars, and the defendants could only prove for their claim in the liquidation. Bowsx and Far, L.JJ., concurred. —Counsar., Fre_/wh,Q,.C., and T.1fiM0n; Finlay, Q,.C., and J, G, Wm

[ocr errors]
[ocr errors][ocr errors][ocr errors]

The question in this case was as to the 0 binding settlement of a reversionary intergsgviii (geigiitiiaflmgfatg llzalgii B ing to a female ward of court who has married without the sanction of ti; court. In April, 1862, L., n ward of court eighteen years of married S., without the sanction of the court, or the knowled e rafie’ mother and guardian. She was then, under the will of her fa%h 0 lit died in 1848, entitled to a reversionary interest in personal estat erb‘.v ° to her mother‘s life interest. In 1863 a settlement was made b eyfi Ject Mrs. S., and was signed by the chief clerk of Wood V C as hgvin band approved by the judge. By this deed the reversionary ll1lBI€ShgOfil31n wife was settled, on trust for the wife for life with remai d B children of the marriage, as the husband and wife jointl 0 n eh,“ the vivor, should appoint, and in default of appointment yforrtlig childequally at twenty-one or marriage, with ultimate trusts for the ben fltren the wife. In 1873, on a petition by various parties interested ' e ' of Mr. and Mrs. S. and the tenant for life, a sum of £5 405 C mcludmg trarrsferredto the trustees of the settlement as art ofathi omols was Mrs. S. thereby settled. In 1877 Mrs. S. obtaineld a. ' <1‘ fihproperty. °f from her husband on the ground of his cruelty and 51!; ici separation pay him £100 a year. In 1882 the marriage waei dissolved was ordered to the 11\lsbl1I\d's adultery and cruelty. In 1883 the D’ ml ?‘(§c°““t °f an order varying the settlement by extingnishin Ingres l?ms‘°n made therein, and also discharging Mrs. S. from the org; mike interest of S. year, and he was afterwards ordered to pay Mrs S £l2pay mm £100 8 children. On the death of the tenant for lif : ' 0 3 year for the changed her solicitors, petitioned to have her slf m 1886 MP5S" having in court, transferred to her, on the ground thatfithamountmg '5° 520.000 binding on her, as she was, at the date of its €X(5Cl1tieOl:et8t1:‘A]-v:l1l?lPitdwB's not , e woman

[graphic]
[ocr errors]

as well as an infant, and the interest arose under an instrument made befm the date at which the Infants’ Settlements Act came into Operation, Bacon, V.C., held (33 Ch. D. 483) that the settlement was valid, either under the inherent jurisdiction of the court over the property of its wards, or under the Infants’ Settlements Act; and that, even if it was originally invalid, it had been confirmed by acquiescence.

THE Corur or APPEAL (Corrox, LINDLEY, and Lorne, LJJ) reversed the decision, holding that the petitioner was absolutely entitled to the fund. Co-rrox, L.J., said that the case had been dealt with as if the appellant were seeking to be relieved from the settlement, but she was really claiming the fund in court as the person entitled ta it under her father’s will. She said that she was in the position of a single woman to all intents and purposes, because the reversionary interest did not fall in till after the divorce, and that she was entitled to it as if she had survived her husband. On the other side it was said that the interest was bound by the settlement which had been approved by the court. When the settlement was executed she was an infant married woman, who had no power to dispose of the reversionary interest in question durin coverture. The Infants’ Marriage Settlements Act of 1855 was relied on. In Ra S/unpson and Wall (25 Uh. D. 482) it was held that the Act applied

‘to post-nuptial settlements executed upon the occasion of marriage.

But the question now was whether the Act only got rid of the disability of infancy, or did something more. In his lordship's opinion it did no more. Inhis lordship's opinion the true construction of section 1 was that it gave an infant the power, on marriage, to dispose of property which, if adult, the settlor would have had powerto dispose of. In other words. the Act only removed the disability of infancy, but it did not give an infant power to dispose of that which an adult would have had no power to dispose of. The whole section must be read together, and then it appeared that this was the intention. The Vice-Chancellor had, however, relied on the inherent power of the Court of Chancery to deal with the property of its wards. But had the court power to bind the property of a ward? There was no statute which gave the court power to forfeit the property of I ward who married without leave, and it must be borne in mind thatto make a settlement giving the wife's property to her children would be take it from her, even though it might be for her benefit so to settle it. In Re Murray (3 Dr. 8c War. 83) Lord St. Looiiards had disclaimed such! power, and Irord Justice Turner, in Field v. Moore (7 De G.M. it G. 691), said there was no authority for the position that contempt gave the Mm jurisdiction to make a settlement binding on a ward who had been married without leave. Then it was said that it was a matter of course to order a person who had married without leave to execute a settlement. That was so ; in such a case the court was dealing with a contempt. Md it punished the husband by making him give up rights to his wife's pro?erty which he would have acquired by the marriage. Against a husband in contempt such orders were made, but it had never been the practice Oi the court to order a female ward to give up her property and impose on hers penalty. The settlement must therefore be regarded as ineffectual to bind the wife's reversionary interest. But it was urged that she had confirmed the settlement before the proceedings in the Divorce Court But at that time she was incapable of dealing with the property. As tothe £5_.4°° Console, if she had taken advantage of the settlement so as to 1'81!“ question of election between her and her husband the case would have been different, but no such question was raised. Further, itWl5°°"' tended that, by the application to be relieved of the payment of £100 :1 year to her husband, the wife had confirmed the settlement; but there could be no question of acquiescence where the settlement W ineffectual. If it had been binding till set aside, acquiescence would have been very important. Lastly, it was argued that the variation ofthe settlement by the Divorce Court recognized the settlement as bindingThe question raised was as to the amount of the wife’s income, and whether she ought still to ay the £100 a year. The settlement WI! valid as the settlement of the husband, and binding on him, ma. no declaration of trust was made by the wife's reciting the settlement in I petition to extinguish the interest of the husband. She now asked l-lie court that her roperty might be given to her, and there was no 0555551” in her way. The order of the Vice-Chancellor must be reversed» "id ' fund must be transferred to her. The husband could spill)’ t° “fie Divorce Division for a reduction, under the altered circumstsnvflil °f id: allowance of £120 which he was ordered to pay her when she had 8 I11“ smaller income. Lisnrrzr, L.J., said that if the settlement had W“ made before the marriage, it would have been operative as to the "'3' sionary interest, the only incapacity being infancy. The Act removed _ :1? disability of infancy, but nothing more. That was the only 0Ol15"“°';° t which reconciled its provisions. The difliculty arising from the Ml t D the settlement was approved by the court was removed by the consll‘1fi"' tion that the court could not have compelled the ward to execute such? settlement before marriage. It was impossible to hold the settlement binding as regarded the reversionary interest, because the lid)’ W“ ‘lg only an infant but a married woman. The settlement was actual]! i°l l not voidabls, as regarded her, and, therefore, it was incapable of 1:42; firmation by her, or of being acquiesced in. As to the £5,405» “H PM ,1 had made 5 800d disposition of it by agreeing that it should be held °e the trusts of the settlement. When the wife became mi juris she Wage competent to make n new settlement. It was impossible to say that sci had done so by a proceeding which she took for the sole P“"P°:5_ d°P"V1l1B the husband of all interest. Lorizs, L-J-1 °°n°‘$nT '1, CWNSBL1 175107141’, Q.C., and Jill-kley Rogers; Marten, Q-C-1 an am. Wii/""""" ; Millaf‘. Q<C., and Brabrmz. Sonrcrrons, Purkifl 4 0"-1' E‘ Woodward Q 6'0. ; C’/rpron, Dallons, Q C0.

[ocr errors]
[graphic]
[graphic]
[merged small][graphic][graphic][graphic][graphic][graphic][graphic][graphic][graphic][graphic]
[graphic]
[ocr errors]

, .

This was an appeal from a decision of North, J.(ant1', p. 234), the question being as to the jurisdiction of the court to sanction the payment of the cost of making a permanent improvement to a settled estate out of “capital money" in the hands of the trustees of the settlement for the purposes of the Settled Land Act. The tenant for lite, without first consulting the trustees, had executed the work, which was for the improvement of a well of mineral water on the estate, at his own expense, and afterwards submitted a scheme to the trustees for their approval, which they gave, and, after doing so, they applied to the court to sanction the payment of the cost of the works out of moneys in their hands, which had arisen from the subsequent sale of the estate by the tenant for lite under the Act. North, J ., held that, as a scheme had not been submitted to the trustees for their approval before the work was executed, he had no jurisdiction under section 26 of the Act to sanction the payment of the cost by the trustees out of “capital money." Section 26 provides: “ (1) Where the tenant for life is desirous that capital money arising under this Act shall be applied in or towards payment for an improvement authorized by this Act, he may submit for approval to the trustees of the settlement, or to the court, as the case may require, a scheme for the execution of the improvement, shewing the proposed expenditure thereon. (2) Where the capital money to be expended is in the hands of trustees, then, after a scheme is approved by them, the trustees may apply that money in or towards payment for the whole or part of any work or o oration comprised in the improvement, on (inter alia) (3) an order of the court directing or authorizing the trustees to so apply a specified portion of the capital money."

Tim Couar or Arrasr. (Corrox, LINDLEY, and Lorna, L.-TJ.) aflirmed the decision. Corrox, L.J., was of opinion that the work was one of those authorized by section 25 of the Act, as being an improvement of an existing well. But the question was whether the court had jurisdiction to authorize the trustees to pay the cost of the improvement out of the money which had arisen from the sale of the estate? In his lordship‘s opinion it had not. Indeed, he had very great doubt whether there would be power to sanction the payment for an improvement upon land which was no longer subject to the settlement, even if a scheme had been submitted to and approved by the trustees before the work was executed. He would not, however, decide that point now, for he thought that, before the work was executed, a scheme ought to he submitted for the approval of the trustees or the court, as the case might be. It had been urged that section 26 was only permissive. But the meaning of it was that, if the tenant for life wished to have the cost of the work paid out of “capital money," he must follow the steps pointed out by the Act. In his lordship's opinion the court would be placcd in a wrong position if, after the tenant for life had spent the money, he could come to the court and ask it to sanction its repayment by the trustees out of “capital money.” It was true that the court had often authorized the application of money paid into court under the Lands Clauses Act in the payment of expenditure already incurred for the benefit of a settled estate. But, in the present case, the court was acting under a statutory power, and ought to require that the provisions of the Act should be followed strictly. This was a suflicicnt ground for the decision. LINDLBY, L J., was also of opinion that the court had no power to sanction the expenditure. He would not touch upon the point which Cotton, L.J., had suggested. But he thought that the key to the whole procedure under section 26 was the submittin of a scheme showing the proposed expenditure. It was urgedthat this won]: be a narrow construction of the section. No one, however, who had had practical experience of these matters could help seeing that there wasall the difference in the world between the submission of a scheme for proposed works and asking the ap roval of works already executed. If ascheme for proposed works was submitted to a man he would consider whether there was any better alternative scheme. It the work was already done, he would only consider whether it was for the benefit of the estate. His mind would approach the matter in a totally different way in the two cases. The court would strain the language of section 26 If ii were to accede to this application, and would open the door to very dangerous expenditure. Under the pressure of the fact that the money had been already expended by the tenant for life, trustees would be ready to ratify many things which they would not have approved of in the first instance. Lo:-as, L.J., concurred. Section 26 provided U181? 8 scheme should he approved, and it was diiilcult to see what would be the 1186 of the approval of a scheme for works which had been, in fact, executed without any scheme being approved. The object of the section ‘"18 to give the court a control over the works, over their design and mode of construction. He refrained from expressing any opinion on the point ”“889ed by Cotton, L.J.—Cov1vszi., F. T. Proclar; J. T. Dorld. SonorT011, H. P. Cobb.

[ocr errors]
[ocr errors]

In this case a question was raised as to the right of an executor, as defendantto a creditor's action for the administration of the real and personal estate of his testator, to have his costs, charges, and expenses Kgvlded for in priority to the plaintiif and the other creditors, there

J8, in fact, no personal estate. The validity of the testator's will had be_ei1_contested by the testator's heir-at-law in an action in the Probate Division, in which the executor propounded the will, and judgment was Pronounced in favour of the will, and the heir-at-law was ordered to pay the of the action. These costs had not been paid. The administration °¢|Il0n was brought for the purpose of making the testator’s specifically

E

1

devised real estate available for the payment of his debts, and, in answer to the usual inquiry, the chief clerk certified that there was no personal estate. The real estate, which was subject to a mortgage of the testator, had been sold by the mortgagee, and the proceeds paid into court. By the order on further consideration, Bacon, V.O., directed the costs of the plaintiff and of the executor to be taxed, the costs of the executor to include his charges and expenses properly incurred relating to the action in the Probate Division, but without prejudice to the manner in which the debts and costs were to be paid out of the proceeds of the real estate. The minutes oi the order, as settled by the chief clerk, provided for the payment of the executor's costs, as taxed, in priority to those of the plaintiff and to the debts. The plaintiif now applied to vary the minutes, on the ground that, there being no personal estate, the executor was not entitled to be paid in priority to him, and the application was supported by the mortgagee, who had liberty to attend the proceedings. In support of the application. the cases of Jlajor v. Major (2 \V. R. 382, 2 Drew. 281) and Charter v. Charter (24 \V. R. 87-l, 3 Ch. D. 218) were referred to, as shewingthat the costs of litigation in the Probate Court were notpsyable in priority to the costs of an administration action, nor chargeable against real estate. Kay, J ., pointed out that in those cases the costs were not incurred by an executor, but by a creditor only, whereas the costs here were incurred by the executor in proving the will, and the real estate could not have been made available for the payment of the testator’s debts without the executor being made a party to the administration action. In answer to this, it was admitted that he was entitled to priority for his costs incurred in the administration action, but not to the costs ot the probate act-ion, which were recoverable only against personal estate. The executor did not appear, and eventually

KAY, J , directed the executor‘s costs in the administration action, as between solicitor and client, to be paid first ; next the costs of the plaintifi ; and lastly the testator'a debts.—Cocssar., W. B. Heath ; Marten, Q.C., and Jlfaidlow. SOLICITORS, Pallisan, Wig;/, §- Co., fOl‘AIld1‘t!t‘8, Barrett, 5-Andrews, Weymouth ; Wainriglzt 5- Baillie.

[ocr errors]
[ocr errors]

The question in this case was as to the effect of a bequest by a testator of the lease of the house in which he should be living at his death, he in fact, at the time of his death, being living in a freehold house. The testator gave “ all the plate, linen, china, glass, wines, liqueurs, furniture, and other efiects which shall be in and about the dwelling-house in which I shall reside at the time of my decease, together with the lease of such house, and also my park phaeton, to my wife absolutely.” The will was made in 1878. At that time the testator lived in a house of which he was the lessee at a rack-rent for a term of seven years. In May, 1884, he bought a freehold house, to which he removed in J une, 1884. He died iii November, 1884, leaving his wife surviving him.

N onru, J ., said that at the time of the testator’s death there was not any lease, therefore it could not be said that the words, strictly taken, passed anything. lIe would not be bound by the exact words if the context, or the context taken with other passages in the will, shewed that the testator intended to give something not within the language. In that case he should give effect to the intention. But, looking at all the circumstances, he was satisfied that there was no intention on the part of the tcstator to give the fee simple in a house which he did not purchase till manyyears after he had made his will. It bad been argued that it the testator had gone to live in a house of which he had a lease for a long term years at a peppercorn rent, that house would have passed under the bequest, and that there was no difierence in money value between such a long term and a fee. But the one was within the description in the gift. and the other was not. There was nothing to shew that the testator had the remotest idea of possessing a fee simple estate which he had not at the time when he made his will. He therefore held that the widow was not entitledto the 1101186.-'*COUNSEL, Coo/.-son, Q,.C., and Trrnwi R. Srmtli; Cozms-Hardy, Q,.O., and Srmmcl Hall ,- Emdm ; Ingle Joyce. Somcirons, G. 11. Um"!/ww; Jo/in Burton; Howard § Shelton.

[ocr errors]

W1LL—CONr§TRU(,TlON—CONSL‘l{AHLB An.-ricr.ns—Gii-"r or STOCK-IN’-TRADE: &o., TO Taxaurs IN‘ COMMON—GlFT ro Nxx-r or ‘KIN IN zvnur oi Daarn.

' e was as to the effect of a 'it by will ofa bufilhzsgufidgoghhn sttliidkfild-trade and other articles emplrdyed in it. The testatcr bequeathed the leasehold house in which he carried on his business and also all the plant, stock-in-trade, fixtures, and utensils of trade, arid the goodwill of the business, to his sons, J., \V., and T.,_in e ual shares rovided that, upon the death of either of them (whether in tiie testator’h lifetime or after his decease), the share or shares of him 01' them so d ing should go to his or their next of kin accordingto the statutes cg distribution. The business was, after the death of the testator carried on by the three sons in partnership, without any articles,

d foi- the purposes of the business, they purchased other leasehold an ' ' nd used or disposed of the articles comprised in the bequest in pliemi-51%a course of business The sons afterwards agrced to dissolve

t e 0 inmyhi nnd two of them agreed to purchase the interest Of the

mg mt 2])?-ab giness 8:0 and the question arose whether that son was

toeredleive the whole purchase-money of his interest, or whether

It N831:-’:b'iTectht<‘ii<i;\1tih,aitr1t‘ti:i‘son was entitled to receive the whole Purchase

mQn:1;, 'Hesaid that Cuckayne v. Harrison (20 w. R. 504, 13 Eq. 432; and

[graphic]
[graphic]

Groves v. W1'fyd-Z (2 K. & J . 347) were distinguishable, they being eases in which a testator had settled a farm and the stock employed On 15 011 B tenant for life, with a gift in remainder. In the present case_he was of opinion that there was no trust in favour of the next of kin which would prevent a son from selling his share. He thought that the proviso in favour of the next of kin of a deceased son did 1iot_cut_down the absolute interests givento the sons in the first instance to life interests. I If there was any trust it only affected the interest of a son who might be a partner in the business at the time of his death ; there was no trust affecting the share of a son who sold it in his lifetime.——QoL'.~zszr._, St Jo/in Clerks; Chaziwyv/c-Heals;/. SOLICITORS, E. H. Biggin; Drgby Q Lulrlle.

[ocr errors][ocr errors]

A testator gave and bequeathed all his personal and real estate to his wife “ for her special use and benefit and for the special use and benefit and for the education and bringing up of my children.” The question was, what interest the wife took under this gift. She had assumed to be the absolute owner of a freehold house which formed part of the testator's property, and had mortgaged it.

Noimr, J., held that, but for the words, “for the education and bringing up of my children," the case would have been clearly governed by Newill v. Newill (20 W. It. 308, 7 on. 253), and the widow and the children would have taken as joint tenants. And his lordship was of opinion that these words made no difference as to the interest taken by the widow, and did not give her any power to dispose of the capital of the property. They, at the most, gave her the control over the whole income during the infancy of the children, she maintaining and educating them.-Cousssn, Sir A. Watson, Q C., and Methold; Swinfrn Early ,Glfilrd, Q.O., and Davenport. Soucirons, Ilnfrs, Henley, it Sweat; Crassman, Crossman, gt I’rir/mnl ; Gregory, Rowrlifcs, Q Co.

[ocr errors]

This case raised a question of domicile. The testator was born in India, and had married there a lady by whom he had had four children, and had never left that country until 1871. For two years before he left he had been an oflicsr in the service of the Nizam of Hyderabad. In the beginnmg of 1871 he left India and went to reside at Darmstadt. In July, 1871 (being then a widower), he asked permission to pay his addresses to a German lady, and in May, 1872, hc purchased a house in Darmstadt, and lived there continuously till his death, except that he paid three or four visits to England of about six mouths‘ duration, and in 1874 went to India for a short time for the purpose of winding up his affairs there. Two letters from the testator were produced, one written shortly before he left India, and the other in July, 1871, both of which shewed that he had a strong preference for Germany, and that he intended to reside in Darmstadt. By his will, which was made in 1874, in English form, he gave his property to his grandchildren. By the German law it is not competent for atestator to exclude his children from all benefit in his property. large number of affidavits were read by persons who deposed that they believed the tcstator was desirous of ultimately coining to reside in England. The matter came on upon a summons to vary the certificate ot the chief clerk, by which it was found that the testator's domicil was German. _

Sr_iiiuxo, J., said that the domicil of origin continued until a new domicil had been acquired, and_the burden of proving a change of domicil lay upon those who asserted it. To acquire a domicil of choice it was necessary that there should be actual residence in the country, and that there should be an intention to reside there permanently (Bell v. Kmnerly, 1 Sc. App. 3107; U/iny v. Udny, 1 Sc. App. 441). The letters of the testator in this case shewed a strong preference for Germany as a place of residence, and, his lordship thought, also an intention to live permanently at Darmstadt. The purchase of a house there was prunri fame evidence of an intention to reside there, although it was not a)fl]t1l;l;1V0. There was nothing in the ev1dence,_except aflldavits of belief,

6 to I1 cpntrary conclusion. His lordship therefore held that the testators domicil was German.—Covnssr., Pearson, Q.C., and Carsmi ; Haatmga, Q.C., and Farwell ; Marcy.

[ocr errors]

This was a motion b the landlord of a farm fo ' ' ' restrain the defendant, wyho was tenant from year to ygatn figiiilusilfivldirio the farm to remain without a proper and sufficient stock df shee horses and cattle. The agreement under which the defendant held COl:1,i§8il1€ds, stipulation that the tenant should at all times during the tenancy kee oi: the farm “ a proper and sufficient stock of sheep horses and catxtle " The defendant had given notice to quit, and had 'recentl adve t‘ d 1 the local newspapers and by posters his intention to sell th rflsem stock and furniture, including a certain number of cows and hoe “mmg

STIRLING, J., said that he could not consistently with the men. the court grant the injunction asked for. To do so would b ‘pmffwe of compel speciflc performance of a stipulation in a farmine Hf e eat to Rayner v. Stone (2 Eden, 128) decided that “ common covengntmge’ ljmd bandry" were not the subject of equitable jurisdiction Th 5 m usreally asked to superintend the performance of this I 0 cut“ W“ remainder of the lease, and that 1t could not do -C Coven“? qurmg the and Metliold. Soucirous, Walters, Dewrell, g C0 OmanWNWQ'C"

[graphic]
[ocr errors]

In this case judgment was given upon a motion for a grant of probate under tho following circumstances. The deceased, on the 23rd of October, 1886, requested John Jones to make some alterations in a will which he had executed on the 22nd of May, 1878, and Wliiull WIB contained in the first page of a sheet of foolscap paper. Jones thereupon wrote certain testamentary directions on the third page of the sheet, beginning with the words, “ The following alterations have been first made," and followed by the words, “Signed by the said testator (on the margin of) the aforewritten will and testament,” &c., and concluding in the form of a regular attestation clause. There were no signatures on the third page, butin the margin of the first page there were the mark of the t/estator and the signatures of two attesting witnesses. Application was made toinclud-2 the writing on the third page to probate, either as a duly-executed codicil, or as being incorporated in the will by the signatures in the margin, and In the Goods ofBirt (19 W. R. 511, 2 P. & D. 214) was relied upon.

Harman, P., now said that he should have been glad to admit the whole of the document to probate, but he entertained no doubt that it was impossible for him to do so. In the recent case of Margary v. Robinson (31 Soi.icirons' Jons.s'ar., 111, 12 P. D. 8) he had had occasion to consider the enactments relating to the position of the signature to a will, and he need now only say that the Legislature had never departed from the principle that the signature must be “ at the foot or end" of the instrument. He could not hold that what was written on one page of the paper had been duly executed on another page, nor could he treat the signatures in the margin of the first page as authenticating an interlineation. The words written on the third page must, therefore, be excluded from the p'l.‘Ob&f£.-—COL'i\‘Sl!L, 0. A. Middleton. Soucn-oiis, Imlcrmaur Q Brown, for Marmm, Mold.

[graphic][ocr errors]
[ocr errors]

In this case a question arose as to the right of a creditortoissuefl bankruptcy notice in respect of a judgment debt, on the failure of the debtor to carry out an agreement for the payment of the debt by instalment!After the judgment had been obtained the creditor issued a bankrnpffi! notice in respect of it, and an agreement was then entered into between him and the debtor that the latter should pay £100 (which was made “P of £37 costs in the action, £25 costs of the bankruptcy proceeding! and £38, part of the judgment debt) immediately, and the balance of the debt by monthly instalments, and, if default should be made in paymtllf of any instalment, the whole unpaid balance was to become at once dueThe £100 was paid by the debtor, and so were some of the instalmentfl, but he then made default, and the creditor issued a new bankr1lP°°! notice. Mr. Registrar Brougham dismissed an application by the debtor to set aside the notice.

THE Couu-r or Ai>rs.u. (Lord ESHBB, M.R , and Bowss and Far, L--LL)’ affirmed the decision. On behalf of the debtor it was argued (1) til?‘ the agreement had been accepted by the creditor in satisfaction of the 11158ment, and that, upon default, his only remedy was under the agreement, and the judgment debt did not revive; (2) that a second bsnkrupl-CY notice could not be issued in respect of the same judgment debt. L011 Esnsn, M.R., said that, when a man had obtained a judgI116l1H°'“ debt. F116 001114; Ought not to hold that any agreement with the debtor WM taken in satisfaction of the judgment, unless it was perfectly ole" 571" that was intended. In the present case the true construction of 111° agreement was that, in consideration of the payment of the costs do"-f the creditor gave the debtor time to satisfy the judgmolllh A PM ° the judgment debt was also paid at once, and what remained due ‘"1: PB" Of the judgment debt. It was to be paid by instalment-B, ""5! i any One oi them was not duly paid, the whole was to become due—'-P-1 due under the judgment. There was, consequently, B-j\1d8m°“t debt,” support the bankruptcy notice. As to the oint that asecond bankr\1P°§' notice could not be issued, there was no coibur for it in the Act. 3°“? L-Jmid that. BB long as a judgment was available for execunon»;_::;‘_ "Pic? Bctlce could be issued in respect of it. FRY, L-J-. °°"Q _'J Couxssn, Ellis J. Dr!-via; Sidney Woolf. Soniciroas, R. B. H. PUMP‘: Seymour Salaman,

[ocr errors][ocr errors][ocr errors][ocr errors]
[graphic]

g Feb. 26, I887. THE SOLICITORS’ JOURNAL. 287

[graphic]
[graphic]
[graphic]

was dated the 25th of July, 1876. The annual premium was £378 sterling, payable at the London oflice of the society, and, in consideration of the premiums being duly paid, the company promised to pay to the wife “for her sole use, if living, in conformity with the statute," and, if not living, to the children of the husband, or their guardian, for their use, or, if there should be no such children surviving, then to the executors, administrators, or assigns of the husband, the sum of £6,000 sterling, at the London office, within sixty days after notice and proof of the death of the husband furnished to the company at their principal offlce in New York. The policy was also expressed to be issued upon certain special conditions relating to “Tontine” Policies which were indorsed on it. These conditions provided (interalia) that the tontine dividend period for the policy should be completed on the 12th of July, 1886; that no dividend should be paid upon the policy, unless the life assured should survive the completion of its tontine dividend period, and unless the policy should be then in force; and that, upon the completion of the tontiiie dividend eriod, provided the policy should not have been terminated previously by lapse or death, the legal holder of the policy should have the option either—(l) to withdraw in cash the policy's entire share of the assets (i.:., the accumulated reserve and surplus apportioned by the society to the policy); (2) to convert the same into a paid-up olicy for the same amount; (3) to continue the assurance for the original) amount, and apply the entire tontine dividend to the purchase of an annuity to reduce the premiums; or (4) to withdraw in cash the share of the accumulated surplus apportioned to the policy, and continue the policy in force on the ordinary plan. By a statute of the State of New York it was provided that it should be lawful for any married woman by herself, and in her name, to cause to be insured for her sole use the life of her husband for the term of his life, and, in case of her surviving such term, the amount becoming due and payable by the terms of the insurance should be payable to her, to and for her own use, free from the claims of the representatives of the husband or of any of his creditors; but when the premium paid in any year out of the funds of the husband should exceed 500 dollars, such exemption from such claims should not ap lyto so much of the premiums so paid as should be in excess of 500 dollars, but such excess, with the interest thereon, should enure to the benefit of his creditors. The premiums were paid by the husband up to July, 1883; after that date the wife paid them out of her separate estate. In August, 1886, after the husband had obtained his discharge, the wife exercised the option given to her by the above condition in the first of the four ways mentioned, and £2,959 was paid by the company in respect of the policy, which was then given up to them. The trustee in the liquidation claimed, under the New York Statute, the excess of the premiums paid by the husband above 500 dollars yearly as part of his estate in the liquidation, on the ground that the American law was imported by contract into the policy; or, in the alternative, that the sum paid for the surrender of the olicy was not subject to the trust for the wife, and therefore belonged) to the husband by his marital right. Mr. Registrar Finlay Knight held that the whole of the proceeds belonged to the wifa as qpart of her separate estate. an Couar or APPEAL (Lord Esnim, M.R., and Bowim and Far, L.JJ.) alilrmed that decision. Lord Esnsa, M.R., said that the policy did not seem to him to have introduced any part of the American law. The words “in conformity with the statute" referred only to the obligation to pay the money to the wife for her sole use. The contract was made with the wife, not with the husband, and the money was to be paid to her if she survived him. That contingency had not happened, as the husband was alive. But there was another contingency upon which the company might be obliged to pay the money to the wife—-namely, if shechose, at the end of the tontine dividend period, to insist upon payment to her of her share 1n the assets. His lordship could not doubt that this money, when paid, Was Intended to be for her separate use. It would be absurd to suppose that, it she exercised her option in that way, it was intended that she was to lose the money altogether by its becoming the property of the husband. It could not, therefore, belong to the husband or his creditors. The option was not exercised until after the husband's discharge, and at the date of the discharge he had only a mere hope or contingency which could not be valued, and was not “property " which vested in his trustee. Bnwss, L.J., was of the same opinion, though not for the same reasons. The clause as to payment to the wife was not intended to incorporate the American law for all purposes, but only as to the obligation to pay to the wife under the contract. The real question, however, arose, not on that clause, but on the clause allowing the wife to withdraw the accumulated value of the policy. The question was, who was entitled to the money paid under this clause? He could not agree that it was clear from the contract that the money was to be for the sole use of the wife. The matter was left in doubt. But the husband obtained his dischargein 1334, and the question was whether this could be considered as property vested in him then. He had a mere chance or hope that his wife might Possibly adopt one of a number of courses which might be for his benefit. That_ chance could not be valued any more than a chance that a rich relative _inight die and leave his property to a bankrupt. It was a mere 'Pe§=ulation not capable of estimation. The trustee, therefore, was not entitled to the money. Far, LJ., agreed with Bowen, L.J.—Covxsiu., B'97'¢"I. Q.C., and Almzhams; Reid, Q.C., and Sidney Woolf. SOLICITORS, ll. Abralmms, Son, §- 00. ; Alfred Howard.

[graphic][merged small][ocr errors][merged small]

' LAW SOCIETIES.
INCORPORATED LAVV SOCIETY.

The following circular has been issued to the London members of the society :—At the meeting of the society at York, in October last, a resolution was passed to the effect that the meeting usually held in the provinces annually should, in the year 1857, take place in London, particunrly having regard to the fact that the year 1887 (being the fiftieth of her llIajssty’s reign) is to be marked as a jubilee year and celebrated accordingly. The council have had this resolution under consideration, and, after ascertaining the views of the provincial societies, they have decided that the most convenient time for holding the meeting will bein the week commencing the 6th of June next. They have discussed the best means of enabling the London members of the society to make some return for the hospitalities dispensed to them in the provinces, and for this purpose they propose that the entertainment shall consist of a dinner, a ball, and some other entertainment, either theatrical or musical, to be hereafter determined. Invitations will be given to all the provincial members of the society. As the expenses of such an entertainment cannot be thrown on the general funds of the society, it is suggested that they should be provided for by means of a guarantee fund, to be formed by the members of the council and the London members of the society. It is proposed that the London members of the council, and such of the London members of the society as guarantee a sum up to, but not exceeding, ten guineas, shall constitute a Grand Committee for carrying the object in view into effect. Also, that the members of the society who guarantee up to five guineas shall be entitled to participate in the entertainment. The committee will be happy to receive donations of a less amount than five gnineas from members who, though not able to take partin the entertainment, desire to contribute to the expenses of the celebration. I am directed to invite your co-operation in this movement, and for this purpose I enclose you a form which you can fill up at your discretion, indicating whether you will suscribe for ten guineas or five guineas, or for any less sum, in terms of this communication; and as it is desirable that the amount which will be at the disposal of the committee shouldbe ascertained with as little delay as possible, I shall feel obliged by your favouring me with an early answer. As soon as the Grand Committee has been constituted it is proposed to convene a general meeting of that committee for the purpose of appointing a small sub-committee, to whom the duties connected with the organization and conduct of the entertainment will be intrusted.

SHEFFIELD DISTRICT INCORPORATED LA\V SOCIETY.

The following are extracts from the report of the committee :—

.Hemben.—The number of members is 129.

Solicitors‘ Carl!"/icate Duly Repml Bill, 1886.—On the subject of this Bill, introduced into the House of Commons in the early part of last session by Mr. O’Hea, M.P., your committee agreed with the Council of the Incorporated Law Society that it was not expedient to take any steps towards the repeal of this duty as suggested by the Bill. This view was adopred by a special general meeting of the Incorporated Law Society, held in the early part of the year.

County C'014i'lR!4l¢8, l886.—It was suggested to the committee that an alteration should be made in ord. 5, r. 9, and in Form No. 15 of the County Court Rules, 1886, which secms to require the personal attendance at the court of suitors entering plaints for service out of the j urisdictiuu, under section 1 of the County Courts Act, 1867, for the purpose of examination on oath, unless the suitors “ reside at a distance from the court." The committee were of opinion that the rule was likely to cause inconvenience and loss of time to suitors, without any necessity or corresponding advantage, and that it was desirable that all suitors, irrespective of their places of residence, desirous of entering plaints in cases coming within section l of the County Courts Act, 1867, should be able to verify the facts necessary to entitle them to a summons for service out of the district, either by affldavit or by personal examination on oath. No alteration has yet been made, but it is understood that at some courts the registrars meet the difliculty by construing the words, “evidence on oath," intheir literal sense, and, therefore, as including ofldavit, and declining to draw from the next sentence the inference (which possibly was not intended to be drawn from it) that the party residing at a distance is the only one who may file an aflldavit, instead of appearing personally. They, in effect, suggest that the word "shall" may there not unreasonably be read “may. ' _

Bankruptog/.—A communication was made to the committee that the present course adopted in the use of proxies at bankruptcy meetings is most unsatisfactory, and that itis expedient that creditors should be at liberty to give a general proxy to their solicitor to represent them at meetings of creditors. Your committee approved of this idea, and were willing to join in any steps to effect the desired alteration. It is understood that the matter will receive the early attention of the Council of the Incorporated Law Society. The committee would call the attention of members to the new scale of costs issued in connection with the Bankruptcy Act, which came into force on the 25th of October last.

“ (Mil Eslate ” Lmses.—It having been brought to the notice of the committee that the trustees of the late Mr. C. F. Cecil (the owners of several plots of building land in Sheflleld), through their solicitors and agents, require a lessee to take a separate lease for every two houses erected _by him, even when such houses were under the same roof as others which he was building, the committee passed a resolution _that_such a practice was highly objectionable and inconvenient, and might mvolve very important legal questions. A copy of this resolution was forwarded to the

[ocr errors][ocr errors][merged small]
« PreviousContinue »