Page images
[ocr errors][ocr errors][ocr errors]

and costs. A payment was made on the judgment,
and at the time of such payment, it was agreed be-
tween the parties to the judgment that the lien of the
judgment should be waived and deferred to a subse-
quent mortgage made by N. of his property, which
was accordingly done, and it was then and there
agreed that the balance of the judgment should be
soon thereafter paid. The payment was not made as
promised, and the plaintiff in the judgment sued out
execution on the 4th of October, 1882. On the 2nd of
January, 1883, nearly fifteen months after the judg-
ment rendered, N. filed a bill for an injuuction to re-

It is true that at any time before judgment the original
plaintiff, before the others were made parties, could
have discontinued the suit or could have settled his
individual damages with the defendants and have exe-
cuted a release which would have been effectual as to
him. But if he had prosecuted the action to judg-
ment then the judgment would have been for the
benefit of all the stockholders, and he would then have
ceased to have control over it because the rights of the
other stockholders would at once have attached
thereto. The bringing of the action by this original
plaintiff did not prevent the other stockholders from
bringing similar actions. But the moment a judg-strain the collection of the balance due on the judg-
ment should be recovered in one action for the benefit
ment, upon the ground that there was usury in the
of all the stockholders, the proceedings in all the debt upon which the judgment was recovered. The
others would be stayed. Innes v. Lansing, 7 Paige, auswer swore away all the equities of the bill, and the
583. In this case therefore it was not necessary that the averments of the answer were not overcome by proof.
other plaintiffs should have been joined as nominal The bill did not allege with any exactness the amount
plaintiffs. The suit could have gone to judgment with- of the usury over and above the principal sum ad-
out their presence as nominal plaintiffs, and the judg-vanced, with legal interest thereon, or the real amount
ment would have been just as effectual and just as
beneficial for them as if they had been actually named
as parties plaintiffs. The suit having been com-
menced for their benefit, in which full and adequate
relief could have been given to them, their rights
would not have been barred by any lapse of time if
they had not come in as plaintiffs. There was no pur-
pose in their becoming nominal plaintiffs except that
they might may some control of the action, and thus
be present to protect and secure their rights, and
to prevent a discontinuance of the action by the origi-
nal plaintiff.

due, principal and interest, after deducting the usury
retained. There was no pretense that the complain-
ant was not fully aware of all the facts of the case from
the commencement. There was no offer to bring into
court the amount of principal and interest that might
be actually due on the judgment after deducting the
alleged usury. Held, that the case was not such as to
entitle the complainant to an injunction to restrain
the execution of the judgment. In the case of Rog-
ers v. Rathbun, 1 Johus. Ch. 367, Chancellor Kent lays
down the principle, deduced from the authorities, ap-
plicable to this and all similar cases. That was a case
to restrain proceedings at law. He said: "It is a set-
tled principle, that he who seeks equity, must do
equity; and if the borrower comes into this court for
relief against his usurious contract, he must do what
is right, as between the parties, by bringing
into court the money actually advanced, with
the legal interest, and then the court will lend
him its aid as against the usurious excess. To
compel a discovery, without such offer, would be
against the fundamental doctrine of this court, which
will not force a discovery that is to lead to a forfeit-
ure. The same principle is fully recognized by this
court in the case of Trumbo v. Blizzard, 6 G. & J. 18,
24; and in the more recent cases of Powell v. Hopkins,
38 Md. 1, 13; Walker v. Cockey, id. 75,78; Hill v. Reif-
snider, 39 id. 429, 433. Newrath v. Hecht. Opinion by
Alvey, C. J.


In Cunningham v. Pell, 5 Paige, 613; S. C., 6 id. 655, a chancery suit was commenced by a creditor against the directors of a moneyed corporation to enforce their liability for a fraudulent breach of trust, and some considerable time after the commencement of the action the plaintiff amended his bill by inserting an allegation that it was filed also in behalf of all others standing in the same situation; and it was held that a third person, against whose right of action at the time of such amendment the statute of limitations had run, so that he could not have filed the bill himself, could not come in and claim relief against the defendants upon the decree made upon such amended bill. But it is clearly inferable from that case that if the suit had originally been commenced by the plaintiff on behalf of himself and all others standing in the same situation, the action would not have been barred as to any of the persons for whose benefit it was prosecuted by any limitation of time.

[blocks in formation]

MUNICIPAL CORPORATION ADVERTISEMENT FOR PROPOSALS FOR GRADING AND PAVING A STREET.Where in an ordinance, providing for the grading, gravelling, shelling, curbing and paving of streets in the city of Baltimore, it is declared that the city commissioner, after he has determined upon doing the work authorized by said ordinance, "shall give ten days' notice in three newspapers that proposals will be received for doing the same," and "that the said proposals shall be opened in the mayor's office, and the contract shall be awarded to the lowest responsible bidder, ," held, (1) that advertising for proposals in one newspaper only is not a substantial compliance with the requirement of the ordinance. (2) That failure by the city commissioner to advertise for proposals to do the work in three newspapers, as required by

the ordinance, is such a departure from a substantial and important provision, introduced for the benefit and protection of the property owners, as entitles them to an injunction to restrain the collection of the tax imposed upon them to pay the expense of the work done. Mayor, etc., v. Johnson. Opinion by Miller, J.


QUEST IN TRUST, FOR EDUCATIONAL AND CHARITABLE PURPOSES-CERTAINTY — MUNICIPAL CORPORATIONPROPERTY HELD IN TRUST BY-EQUITY JURISDICTION. -A testator, who died on the 23d of March, 1882, after declaring certain uses as to a small portion of his estate, devised and bequeathed in trust as to all the rest and residue of his estate, to appropriate and apply the net income thereof as follows: "If within twelve months after my decease, my brother, F. B., shall withdraw from the priesthood in the Romau Catholic Church (should he be at the time of my death a priest in said church), and from any and every order or society connected with said church, of which he may be a member, and until he shall become a priest or deacon in said church, or shall connect himself with some order or society of said church, or until the income of said property, or some part thereof, shall be sought to be subjected to the payment of his debts or liabilities by legal process, I direct that the net income of said rest and residue of my estate, be paid to the said F. B. in every year, in such installments as the said trustee, or his successor or successors, may deem best, for and during the term of the natural life of the said F. B." At the time of the testator's death, his brother, F. B.,was not a priest or deacon in,nor a member of, or connected with any order or society of the Roman Catholic Church; but on the 31st of July, 1882, he became a member of, and connected himself with au order or society of that church, and has remained so connected ever since. He was unmarried and without issue at the time of the death of the testator, and has so remained. On a bill filed to obtain a construction of the will, it was held (1), that F. B. took an equitable estate under the will, and became entitled to the income thereof from the death of the testator to the time of his becoming a member of the order or society connected with the Roman Catholic Church; (2) that it was not against public policy to make the devise or bequest dependent upon the condition that F. B. should withdraw from the priesthood, or membership of any order or society connected with such church, or refrain from forming any such connection; and the testator had the right to make the enjoyment of his bounty dependent upon the condition attached to it. Mitchell v. Mitchell, 18 Md. 405; Vidal v. Girard, 2 How. 127, 199; Ex parte Dickson, 1 Sim. (N. S.) 37. Under its charter, the city of Baltimore has the power to accept and hold in trust, any property for educational and charitable purposes. Code Pub. Local Law, art. 4, § 2; see also 2 Kent Com. 280; 2 Dill. Mun. Corp. (3d ed.), § 567, and cases there cited; Vidal v. Girard, 2 How. 127; McDonogh v. Murdoch, 15 id. 367; Perin v. Carey, 24 id. 465. On the occurrence of an event, which actually took place, a testator devised and bequeathed the rest and residue of his estate to the mayor and city council of Baltimore, in trust, for the McDonogh Educational Fund and Institute, to be applied to establishing a chair therein, to be called the "Zenus Barnum Chair," to promulgate such course of instruction in said Institute, as would aid in the practical application of the mechanical arts. He then declared that the property so given should be held under the same control and direction as the estate and property now held by said Fund and Institute, and to be so appropriated and applied as to give boys in that institution such useful and practical mechanical education, as would enable them to gain a livelihood by skillful manual labor. There never had been such an incorporated body as the "McDonogh Educational Fund and Institute," but there had been for many years, and still existed, a municipal organization or agency, constituted by ordinance of the city, under the name and style of the "Board of Trustees of the McDouogh Educational Fund and Institute," for the administration of the educational fund devised under the will of

McDonogh. The funds derived from McDonogh's estate had been devoted exclusively to the purchase, the establishment, and the maintenance of the "School Farm," authorized and directed to be maintained by the will. This farm, with its organized school thereon, with its teachers and pupils, was known as the "McDonogh Institute," and was under the exclusive management and control of the "Board of Trustees of the McDonogh Educational Fund and Institute." Held, (1) that the testator clearly intended that the estate given should be managed and controlled by the "Board of Trustees of the McDonogh Educational Fund and Institute," and should be applied by that municipal agency, in the manner designated in the will, in connection with, and as part of the "McDonogh Institute." (2) That there was no uncertainty, and there could be no difficulty, in the application of the fund to the purpose and object designated by the testator. (3) That the objects and purposes, and the beneficiaries of the trust, were sufficiently certain and defined to render the trust valid, and to enable a court of equity, by virtue of its inherent jurisdiction and power over trusts, to enforce the trust, in accordance with the plan and intent of the testator. Where property is held by a municipal corporation in trust, or where the trust reposed in the corporation is for a charity within the scope of its duties, a Court of Chancery will prevent the misapplication of the trust funds, and compel the execution of the trust. And this jurisdiction is not founded upon the Statute of 43 Elizabeth, ch. 4, but is a part of the original inherent jurisdiction of the Court of Chancery over the subject of trusts. 2 Dil. Muuc. Corp. (3d ed.), § 567, 909; Attorney-General v. City of Dublin, 1 Bligh N. R. 312. Barnum v. Muyor, etc. Opinion by Alvey,【C. J.


-WHEN PUNITIVE NOT RECOVERABLE.-A passenger on a railway train is responsible for the fare of a child under his charge, and upon refusal to pay the same, may, together with the child, be ejected from the train, although he had paid his own fare. If a conductor on a railway train finds a child sitting beside a female passenger, and knows that the father of the child is in the car, or could know upon proper inquiry, he has no right to hold the female passenger responsible for the child's fare. A passenger wrongfully ejected from a railway train is entitled to recover from the railway company such damages as in the judgment of the jury, under all the circumstances of the case, would be a proper compensation for the unlawful invasion of his rights as a passenger, and for the injury to his person and feelings. A passenger on a railway train, though forcibly and wrongfully ejected from the train by an officer of the railway company, is not entitled to punitive damages, if the wrongful act were committed in the discharge of a supposed duty, or without any evil or bad intention. In the Phila., etc., R. Co. v. Quigley, 21 How. 202, 214, Mr. Justice Campbell says: "Whenever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person. But the malice spoken of in this rule is not merely the doing of an unlawful or injurious act. The word implies that the act complained of was conceived in the spirit of mischief, or of criminal indifference to civil obligations." And in the still later case, in the same court, of Milwaukee, etc., R. Co. v. Arms, 1 Otto, 489 493, Mr. Justice Davis said: "Redress commensurate to such injuries should be afforded. In ascertaining its extent, the jury may consider all the facts which relate to the wrongful act of the defendant, and its

consequences to the plaintiff: but they are not at liberty to go further, unless it was done willfully, or was the result of that reckless indifference to the rights of others which is equivalent to an intentional violation of them. * * *The tort is aggravated by the evil motive, and on this rests the rule of exemplary damages." We might multiply the cases on this subject if necessary, all concurring that exemplary damages are awarded as a punishment for the evil motive, or intention with which the unlawful act is done, and as a warning or example to others. The mere fact, that one is forcibly and deliberately ejected from a railroad car, does not necessarily imply that it was done wantonly, or willfully, or with a bad motive, although the act may be in itself unlawful. The case of the Baltimore, etc., Turnpike v. Boone, 45 Md. 344, on which the instruction of the court is based, differs widely from the one now before us.. There the company, in violation of its charter, had exacted illegal and excessive fares, and passengers were compelled either to pay the same, or subject themselves to be expelled from the cars. It was under these circumstan. ces the court held that public policy required the corporation should be liable to the highest measure of damages, for the deliberation and force accompanying its illegal conduct. But there are no considerations of public policy that require the application of such a rule in a case like the one now under consideration. On the contrary to entitle the plaintiff to recover punitive damages, according to all the decisions both in this country and in England, the jury must find that the wrongful act was done wautonly, or willfully, or in the spirit of oppression. It is the evil motive or intention with which the wrongful act is done, say the Supreme Court, on which rests the rule of punitive damages. Phil., etc., R. Co. v. Hoeflich. Opinion by Robinson, J.


WILL-TRUST-PAYMENT OF INCOME.-The second clause of the will of Pardon Copeland is as follows: "I give, devise and bequeath to the said trustees the sum of $10,000, to be paid to them out of my estate by my executors in one year after the probate of my will, in trust, to invest and reinvest the same at their discretion, and to pay over the income thereof from time to time to my sou Fisher Copeland as in their judg. ment they may think right and best, during his life, and upon his decease to pay over said principal sum of $10,000 to my two graudsons Harry A. Copeland aud Merton F. Copeland, share and share alike, to have and to hold to them and their heirs to their own use forever discharged from all trusts." The only question presented in this case is whether, under this clause, the trustees are entitled to receive from the executors the interest or income of this fund from the death of the testator. It seems to us that the intention of the testator was that the sum of $10,000 should be held by his executors as a part of the general estate for a year after the probate of the will, and that the life tenant was not to be entitled to the income of it during that year; and therefore that the case is not within the provisions of the Public Statutes, ch. 136, § 24. As a general rule, if a residue or a specific fund is given for the benefit of a life tenant, he is entitled to the income from the death of the testator, because such is presumed to have been the testator's intention. Sargent v. Sargent, 103 Mass. 297; Pollock v. Learned, 102 id. 49. But this rule does not apply where the will shows that the testator had a different intention, as for instance, where the will specifies a time for the commencement of the interest or the enjoyment of

[blocks in formation]

INSURANCE-FIRE-EVIDENCE OF USAGE.-The defendant insured the plaintiff on his stock of rags, old metals, bones and barrels " contained in his storehouse. The plaintiff is a junk dealer, "his stock" consisting of old articles and materials, paper stock, pieces and fragments of all kinds; and it could not be particularly described in a policy or other contract without great prolixity. We think it was competent for the plaintiff to prove that by a usage of the trade the terms "" "rags and "old metals" had acquired a broader sifinification than belongs to these words as commonly used. It was an application of the rule that where words have two meanings, one common and the other peculiar and technical, it is competent to show that they were used in the latter sense. 1 Greenl. Ev., $295; Macy v. Whaling Ins. Co., 9 Metc. 354; Daniels v. Hudson Ins. Co., 12 Cush. 416, and cases cited. The usage upon which the plaintiff relied was not a particular or a local usage, but was a general usage of the trade. The defendant asked the court to rule "that a usage or custom of a particular trade, in order to bind the defendant, must be proved by substantive evidence to have been known to them or their agent, and that it was not enough that the jury should presume such knowledge, if they found such a usage to have been of long coutinuance." The court refused this ruling, and instructed the jury "that the plaintiff must prove that the alleged usage was known to the defendant, and that they would be warranted in finding that it was known to the defendant, if they found upon all the evidence that there was such a usage or custom, and that it was well defined, universal, uniform, and of long continuance." We understand this to mean that the jury might infer the knowledge of the defendaut from the universality aud long existence of the usage. A usage such as the instructions required having been proved, the defendant's contract is deemed to have been entered into with reference to such usage if known to it. Underwriters insuring by certain words may fairly be presumed to know the mercantile meaning of the words; and the fact of a wide-spread and established use has at least tendency to show that they had such a knowledge. Howard v. Great Western Ins. Co., 109 Mass. 384; Croucher v. Wilder, 98 id. 322. Mooney v. Howard Ins. Co. Opinion by Morton, C. J. [Decided Jan., 1885.]


[ocr errors]


ATTACHING.—An owner of stock, holding certificate thereof in his own name in a manufacturing corporation existing under the general laws of and doing business in this State, delivered the certificate, with a printed assignment in blank, signed by him, indorsed upon it, to the plaintiff for the purpose of transferring the stock to the plaintiff to hold as security for negotiable paper. While it so held the certificate, and before the assignment had been filled out, and before notice of the assignment had been given to the corporation, the stock was attached by the defendant Williston, who had no notice of the assignment, as the property of the assignor. The certificate contained on its face the words, "transferable only on the books of this company, in person or by power of attorney, ou surrender of this certificate." This bill is brought by the plaintiff to secure its right in the stock, and the question is whether its title is good against Williston as attaching creditor of the assignor. There are two such assignments, the circumstances being alike, except that one was made before the statute of 1881, ch. 302 (Pub. Stats., ch. 105, § 24), and the other when that statute was in force, aud that the assignor was the

treasurer of the corporation when the last one was made. It is assumed that the assignments are sufficient to sustain the right of the plaintiff unless they are rendered invalid against attaching creditors by the statutes of this State. Boston Music Hall v. Cory, 129 Mass. 435, and cases cited; Sibley v. Quinsigamond Nat. Bank, 133 Mass. 515. The general act relating to manufacturing corporations in force when the first assignment was made was the statute of 1870, ch. 224 [§ 26 quoted from]. The policy of the legislation of this Commonwealth has been to make stock in corporations liable to attachment by the creditors of the owner. Stats. 1804, ch. 82; 1808, ch. 65; 1846, ch. 45; 1833, ch. 187, § 8; 1864, ch. 229, § 10; 1838, ch. 98; Pub. Stats., ch. 161, §§ 71-73; ch. 171, §§ 44-50; ch. 105, §§ 25, 26, cited. The inference from this course of legislation that the record of the transfer of stock required by statute is for the benefit of attaching creditors is strengthened by the action of the Legislature at its session next after the decision in Boston Music Hall v. Corey, ubi supra, by the enactment of the statute of 1881, ch. 302. Stat. 1884, ch. 229; Fisher v. Essex Bank, 5 Gray, 373; Boyd v. Rockport Mills, 7 Gray, 406; Blanchard v. Dedham Gas Light Co., 12 id. 213; Johnson v. Somerville Dyeing Co., 15 id. 216; Rock v. Nichols, 3 Allen, 342, cited. The question is not presented in precisely the same aspect in the case at bar as in any of the cases cited, but it is the same question. The stock has not been sold or transferred under the attachment, but the right to it was fixed when the attachment was made. The attaching creditor then acquired the rights of a purchaser for value, and the case is to be determined as if the stock had been sold on execution and a certificate of it given to the creditor. At that time the blank assignment had not been filled out or presented for record, and no demand had been made on the corporation for a new certificate; and the attaching creditor had no notice of the assignment. That upon these facts the statute makes the as signment invalid as to him cannot be doubted. The legislative action and judicial decisions upon the subject are conclusive of the construction and effect to be given to the statute. The second assigument is affected by the statute of 1881, ch. 302, which is decisive against the right of the plaintiff. Central Nat. Bank v. Williston. Opinion by Morton, C. J. [Decided Jan., 1885.]


Action of tort for personal injuries occasioned to the plaintiff by a defective highway in the defendant city. At the trial the jury returned a verdict for the defendant; and the plaintiff alleged exceptions. The accident to the plaintiff happened at a street crossing on Sunday evening, Dec. 24, 1882. Two policemen were allowed to testify as to the condition of the same crossing on a Sunday evening between the middle and the last of December, 1882, they having been led to examine it by hearing of an accident to a woman there. The evidence was clearly admissible. There was quite enough to warrant the inference that it referred to the occasion in question. If the jury had thought that it referred to a different Sunday, they no doubt would have disregarded it. (2) The instruction to the jury that "if there were any residents or tax payers in Lowell on the jury such would leave their seats," did not preclude the plaintiff from moving the court to examine them on oath, or deprive her of her right of challenge. Pub. Stats., ch. 170, § 35. As she did not avail herself of the means of inquiry afforded her by the statute, she is not entitled to a new trial as a matter of law, notwithstanding her ignorance that one of the jurors was a tax payer of Lowell until after the verdict. Woodward v. Dean, 113 Mass. 297; Smith v.

Earl, 118 id. 531; Wassum v. Feeney, 121 id. 93. Daniels v. City of Lowell. Opinion by Holmes, J. [Decided Feb., 1885.]


gift there must be a transfer of the fund to the claim

ant, or at least a transfer of it to the depositor as trustee for the claimant. Sweeney v. Boston Five Cents Savings Bank, 116 Mass. 384, was an instance of the

former. Gerrish v. New Bedford Institution for Sav

ings, 128 Mass. 159, was an instance of the latter. But a declaration of trust by the owner, or a deposit of the fund in his name as trustee, or a deposit in the name of another, will not of itself be sufficient to prove a gift or voluntary trust; there must be some other act or circumstance showing a perfected gift of the legal or equitable interest. Clark v. Clark, 108 Mass. 522. Broderick v. Waltham Savings Bank, 109 id. 149; Powers v. Provident Institution for Savings, 124 id. 377; Eastman v. Woronoco Savings Bank, 136 id. 208. In this case there was no transfer of the fund, no perfected gift of it to the claimant. The supposed donor was the depositor, and as such signed the agreement and was affected with notice of the by-laws of the bank, and received and kept in his possession the deposit book. The by-laws provided that money deposited should only be drawn out by the depositor or some person by him legally authorized, and that no payment should be made to any person without the production of the pass-book; and that any depositor might designate at the time of making the deposit the period for which he desired the same should remain and the person for whose benefit it was made, and should be bound by such condition annexed to his de. posit. The deposit was entered to the credit of the claimant, and the pass-book was in its name, and the following condition was annexed: "Interest to be paid to the order of Urial Shermau. Principal to be drawn by board of said church after the decease of said Urial." The depositor never had any commuuication with the claimant in regard to the matter, and the claimant did not know of the deposit until after the death of the depositor. The only contract made was between the depositor and the bank. The form of the deposit and the condition annexed were parts of that contract, and in some respects modified it; but as regards the claimant they are nothing more than declarations of the depositor competent only upon the question of his intention. But no inference can be drawn from the form or circumstances of the deposit that the depositor intended to give to the claim. ant any right or interest in the fund to take effect during his own life, and deprive him of the dominion and control of the property, and prevent him from revoking the gift. Sherman v. New Bedford, etc., Sav ings Bank. Opinion by Wallen, J. [Decided Feb., 1885.]

LICENSE-HALL TO USE-MAY BE REVOKED.-There was evidence tending to show that the defendant, who was the owner of a hall, entered into an oral agreement with the plaintiff by which he agreed to permit the plaintiff to use the hall for dancing parties on the afternoon of four holidays - Thanksgiving, Christmas, Washington's Birthday and Fast day-at a stipulated price for each afternoon. The Superior Court directed a verdict for the defendant upon the ground that this contract was within the statute of frauds, being a contract for the sale of an interest in land. The question is whether it was such a contract, or merely a contract for a license to the plaintiff to enter and use the hall for the purpose contemplated. A license is a permission or authority to enter the land and to do certain acts or series of acts, the parties not intending to convey any interest in the land; and it is well settled that such a license need not be in writing, under the stat

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

ute of frauds. Thus a license to enter land and cut timber, or to gather the growing crops, is valid, though not in writing. Whitmarsh v. Walker, 1 Metc. 313. So an agreement for a seat in a theatre or other place of amusement is a license merely. McCrea v. Marsh, 12 Gray, 211; Burton v. Scherpf, 1 Allen, 133. So ordinarily an agreement for lodgings in a hotel or boardinghouse, though the rooms the boarder is to occupy are designated, does not create an interest in laud, but is merely a license. White v. Maynard, 111 Mass. 250. In the case before us it seems to us that the contract has the elements of a license rather than of a contract for the sale of any interest in land. The use of the hall by the plaintiff was not to be continuous, but only occasional, and for a few hours on four separate days. He was not to have the exclusive occupation and control of it. The key was never delivered to him, but remained with the defendant, who on the afternoons it was occupied under the contract opened, lighted and closed it. We think the defendant would remain all the time in the legal possession of the land; that the plaintiff was to occupy it merely as licensee, and would acquire under the contract no interest in the land. It is like the ordinary case of hiring a hall for a night, which does not create a lease, but the person who hires occupies under a license. Regarding the contract in this case as a contract for a license, it is true that the defendant had the power to revoke the license; and the plaintiff could not compel the defeudant to give him the use of the hall. But if in revoking it the defendant violated his contract, he is responsible for any damage sustained by the plaintiff by reason of such breach of contract. Johnson v. Wilkinson. Opinion by Morton, C. J.

[Decided Feb., 1885.]


WILL-CONVERSION-DIRECTION FOR SALE-DISCRE TION AS TO TIME OF SALE.-A testator gave to his children all his residuary estate, together with all rents, interests and dividends arising therefrom, to be divided amongst them equally, and he directed his executors to sell and convert into money his property whenever it should appear to their satisfaction that such sale would be for the benefit of his children, and all the money arising from the sale to be invested for the benefit of his children. Held, that (following Doughty v. Bull, 2 P. Wms. 320) the directions to sell and convert was imperative, and operated from the date of the testator's death. High Ct. of Just., Chy. Div. Matter of Raw. Opinion by Pearson, J. [51 L. T.Rep. (N. S.) 283.]

RAILROAD-GENERAL WORDS IN GRANT-RIGHT OF WAY-PURPOSES OF RAILWAY.-By the conveyance to a railway company of certain land purchased under the powers of their act, on which was a stable, the premises were granted, together with all rights, members or appurtenances to the hereditaments belonging or occupied, or enjoyed as part, parcel or member thereof. Some years previously the vendor, for his own convenience, had made a private road on his own land from the highway to the stables, and had used it ever since. The soil of this road was not conveyed to the company, and no express mention of it was made in the conveyance. Held, that the general words in the conveyance gave the company a right of way over the road so long as they used the premises as a stable, notwithstanding that the stables had been purchased for the purposes of their undertaking, and that the company was at liberty to use the stables as such unti such time as they were required for the special purposes of the railway, or were sold as superfluous land.

Kay v. Oxley, L. Rep., 10 Q. B. 360; and Watts v. Kelson, L. Rep., 6 Ch. App. 166, followed. Eng. Ct. of App. Bayley v. Great Western Railway. Opinion by Cotton, Bowen and Fry, L.JJ. [51 L. T. Rep. (N. S.) 337.]


[ocr errors]

COVENANT "HOUSE ADJOINING CELLARS-PERCOLATION. The defendants were the assignees of a piece of land which adjoined the plaintiff's and which was subject to a covenant entered into with the plaintiff that no house should be erected upon the land of less value than 400l. The defendants commenced to build two houses or shops, each two stories high, upon the land, but the local board objected for certain reasons to the mode of building. In consequence of these objections the two houses were thrown together by making a communication between them on the ground floor. On the plan as submitted by the defendants to the local board, there was also shown a communication on the upper floor, but this did not appear to have been carried out. As altered, the houses had two separate doors opening to the road, and two separate shop windows fronting to the road. They each had a separate stair-case, but one of them had no kitchen. In the yard behind, which was common to the two houses, there was only one water-closet and ashpit. It was admitted that each of the two houses, if they were to be considered as separate, was of less value than 400l., but that the value of the two exceeded that sum. One of the houses adjoined a house of the plaintiff's. The defendants had fitted their house with pipes which did not communicate with any drain. The water flowing down the pipes settled in the cellar of the defendants' house, and thence percolated through the ground into the plaintiff's cellar, which was on a lower level, and did some injury. The questions were, first, whether a breach of the covenant had been committed; and secondly, whether the injury done to the plaintiff's cellar by percolation of water was an actionable wrong. Held, that the building substantially formed two houses, and not one, and that therefore a breach of the covenant had been committed. Held also, that the defendants, by allowing the water to escape from their cellar, had committed an actionable wrong, and were liable to pay damages. 1 am not able to make any distinction between the case of Ballard v. Tomlinson, 26 Ch. Div. 194, and the other authorities to which I have referred, and I therefore prefer to follow the well-known case of Tenant v. Golding, 1 Salk. 21, 360, and the long series of cases down to Rylands v. Fletcher, L. R., 3 Eng. & Ir. App. 330, which affirm very distinctly the proposition that, as an application of the maxim sic utere tuo ut alienum non lædus, any one who collects upon his own laud water, or any thing else which would not, in the natural condition of the land, be there, ought to keep it in at his peril, and that if it escapes he is liable for the consequences. This case seems to me to come within that principle. Eng. High Ct. of Just., Chy. Div. Snow v. Whitehead. Opinion by Kay, J. [51 L. T. Rep. (N. S.) 253.]

[ocr errors]
[ocr errors]

WILL-AFTER-ACQUIRED PROPERTY-SPECIFIC OR RESIDUARY GIFT-1 VICT., CH. 26, § 24.-Testator by his will gave to his son G. for life "my cottage and all my land at S., on the especial condition that no fir or other trees or shrubs thereon (except when actually decayed) be at any time cut down or removed, and that the outside boundary of fences be kept in good preservation, and the plantations, heathers and furze be all preserved in their present state; " and as to all other his freehold manor, messuages, lands and real estate whatsoever and wheresoever he gave the same to trustees upon certain trusts. At the date of his will the testator was seised of a cottage and about twenty-two acres of land at S. He subsequently contracted to buy from his son G. a mansion-house and

« PreviousContinue »