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to trustees upon trust for himself for life or until he should ment of the 2nd of April, 1896, represented, so KEKEWICH, J., incumber the same or affect so to do, and in the event of this held, one transaction, and the mortgagees were bound by their trust being determined during his life, then upon trust for the covenant to make the annual payments, provided the mortgagor trustees to apply the income at their discretion for the mainten- observed the terms imposed upon him. The obligation, thereance of W. WILLIAMS and his family. The settlement contained fore, to make the further advances arose at the same time as a covenant by P. A. WILLIAMS and J. W. WILLIAMS that if the the security for them was created, and this security was not mortgagor should go abroad and remain for five years in some apparently prejudiced by the fact that notice of another country out of Europe of which they should approve, and should incumbrance was given before the payments wera actually observe certain other terms, they would pay him for that period made. This, it seems, was the view taken by KEKEWICH, J., the annual sum of £200.
though in the result it was unnecessary for him to decide the Prior to the advance of the sum of £2,297 these last mortga- point. gees made inquiries of the trustees of the will and were The plaintiff's claim to rank after the mortgage for £2,297 informed that no notice of any incumbrance had been received. was really met by the settlement of W. WILLIAMS' equity of On the 7th of July, 1896, they gave to the trustees of the will redemption effected contemporaneously with the mortgage. By notice of the mortgage and settlement of the 2nd of April, the mortgage of the 2nd of April, 1896, not only was an incum. 1896. The plaintiff gave the trustees notice of his mortgage on brance created which, by virtue of the notice to the trustees of the 8th of January, 1897, and on the 15th of February he wrote the will, gained priority over the plaintiff's mortgage, but the to P. A. WILLIAMS and J. W. WILLIAMS offering to redeem equity of redemption which was left in the mortgagor, and their mortgage, but the offer was refused. The defendant which, had the mortgage stood alone, would have been available TEMPLE never gave any notice of his charge at all. Prior to as a security for the plaintiff, had been also assigned, and the the action, and after the 15th of February, 1897, P. A. settlement as well as the mortgage stood in front of the plainWILLIAMS and J. W. WILLIAMS made several payments on tiff's claim. The rule in Dearle v. Hall, said KEKEWICH, J., account of the annual sums of £200, and in the action, which "applies as much to absolute assignments as to assignments by was brought by the plaintiff to obtain a declaration of priorities way of mortgage, and the result is that what was assigned to and to enforce his security, he claimed to have priority over the plaintiff has by his own default ceased to exist." these further advances and to be entitled to a charge on W. It might still have been possible, indeed, for the interest WILLIAMS' life interest under the will, subject only to the which the mortgagor took under the settlement to be treated advance of £2,297.
as representing his life interest under the will, and so be subject Under the above circumstances it was clear that the mort- to the plaintiff's mortgage; but this last chance was cut off by gagees under the mortgage of the 2nd of April, 1896, had the provision for the determination of the interest under the gained priority, at any rate to the extent of the sum then settlement in the event of the mortgagor creating any incumadvanced, over the mortgage and charge of the 24th of Decem- brance upon it. No incumbrance had been created subsequently ber, 1895. The principle established by Dearle v. Hall (3 Russ. to the 2nd of April, 1896, and hence prima facie there had been 1) is that an assignee of an equitable interest in a fund must no forfeiture ; but it has been held in several cases that, for the do all that he can to reduce the interest into possession, and so purpose of bringing such a clause into operation, it is sufficient that prevent the assignor from going elsewhere and raising more the event to be provided against has happened before the date of money upon the same property; and his proper way of doing the settlement. In Seymour v. Lucas (8 W. R. 599, 1 Dr. & S. this is to give notice to the trustees by whom the fund is held. 177) a testator gave real and personal estate to trustees for a Such notice is not, as was pointed ouě by Lord MACNAGUTEN in tenant for life, with a limitation over in case he should thereafter Ward v. Duncombe (42 W. R. 59 ; 1893, A. C. p. 392), necessary become insolvent. The tenant for life was already insolvent at in order to enable the assignee to “complete "his title, but it is the date of the will, and KINDERSLEY, V.C., held, in deference to necessary to enable him to protect his title, and if he neglects to the previous decisions, that the language of the will included give notice and the assignor carries the property into the market past acts, and that the limitation over took effect. So in the again, he pays for his neglect by having his security postponed present case the plaintif's own mortgage operated as a forfeiture to that of a subsequent incumbrancer who exercises greater of the mortgagor’s interest under the settlement, and there was diligence. In this predicament both the plaintiff in the present nothing left for either the plaintiff or the defendant TEMPLE to case and the defendant TEMPLE found themselves.
take. Each of them lost the benefit of his security through But admitting, as the plaintiff did, the priority of the neglect of the precaution insisted upon in Dearle v. Hail. advance of £2,297, there still remained the question, how far he was entitled to take the life interest under the will subject to such advance. Was be entitled to take it at all, and, if
80, was it subject in priority to him to the payments on account of
REVIEWS. the annual sums of £200 which had been made after he had
THE NEW ABRIDGMENT. given P. A. WILLIAMS and J. W. WILLIAMS notice of his mort. ENCYCLOPÆDIA OF THE LAWS OF ENGLAND: BEING A NEW ABRIDGgage. The latter point depended upon the further question whether the doctrine of Hopkinson v. Rolt (9 W. R. 900, 9 H.
MENT BY THE MOST EMINENT LEGAL AUTHORITIES. Under the
BarristerL. C. 514) was, under the circumstances, applicable. By that at-Law. Vol. V.-EMPLOYERS' LIABILITY TO FREEMASON. VOL. case it was decided that, where a first mortgagee takes a VI.-FREIGHT TO INTERMENT. London : Sweet & Maxwell mortgage to cover what is then advanced or due, and also (Limited); Edinburgh: Wm. Green & Sons. future advances, he cannot claim the benefit of the security in The fifth volume of this useful issue suffers from no deficiency of respect of such future advances in priority to a second mortgagee important and interesting subjects. It opens with an article on of whose mortgage he had notice before the further advances Employers' Liability, in which Mr. A. H. Ruegg, Q.C., after pointing were made. But the rule depends upon the circumstance that out the limitations on the common law liability of employers imposed it is within the choice of the first mortgagee whether by the doctrine of common employment and by the application of the further advances shall be made. It made, he can add them the maxim, volenti non fit injuria, discusses their liability under the to his security, but he is under no obligation to make them. “The session. Equitable Assignment is dealt with by Mr. D. M. Kerly, first mortgageo,” said Lord CAMPBELL, C., “ will have no reason and the cases on the effect of notice in conferring priority are to complain, knowing that this is his true position, if he chooses conveniently classified. An article likely to be specially useful is voluntarily to make further advances to the mortgagor. The that on Execution, by Master C. Burney and Mr. F. A. Stringer. second mortgagee cannot be charged with any fraud upon the first the various modes of execution by wriť and by order, including raortgages in making the advance with notice of the first equitable execution, are clearly and succinctly stated, as well mortgage; for, by the hypothesis, each has notice of the as execution in special cases, as against married women and security of the other, and the first mortgages is left in full Purious information as to the dislike of courts of law to that
Under the writ of sequestration will be found some possession of his option to make or to refuse further advances as he may deem it prudent.” In the present case, however, this the writ was fully established a sequestrator was a trespasser, and to
writ upon its introduction. Before the jurisdiction to issue material element was wanting. The mortgage and the settle I kill him, it seems, was no murder. The subject of Executors and
Administrators is treated in considerable detail by Mr. C. W. Greenwood. “Executory Interests" is one of a series of articles on real
CASES OF LAST SITTINGS,
Court of Appeal.
RUABON STEAMSHIP CO. (LIM.) v. LONDON ASSURANCE. No. 1.
30th March. practice of Foreclosure are excellently condensed by Mr. W. F. Phillpotts, and the term “Floating Security” is discussed by Mr. Marine INSURANCE--Repairs TO SHip in Dry Dock-SURVEY for Lloyd's Frank Evans.
CLASSIFICATION-APPORTIONMENT OF EXPENSES. The sixth volume includes among its principal contents articles on This was an appeal by the plaintiffs from the judgment of Mathew, J., Freight, by Mr. G. G. Phillimore; Habeas Corpus, by Mr. G. H. B. in the Commercial Court. The action was brought by the plaintiffs, who Kenrick; Hiring Agreements, by Mr. T. M. Stevens—including a
were the owners of the ship Ruwbon, to recover balance of expenses good statement of the effect of the Bills of Sale Acts on such agree. In the course of a voyage she sustained damage by perils insured against,
incurred in the repair of the ship. The defendants had insured the ship. ments; Husband and Wife, by Mr. C. Montague Lush and Mr. and in order to repair the damage she was placed in dry dock. Tte W. H. Griffith; Infants, by Mr. E. L. De Hart;, Inferior Courts plaintiffs took advantage of the ship being in dock to have her surveyed (Criminal and Quasi-Criminal, Civil, and Manorial, by. Mr. W. F. for the purpose of retaining her class at Lloyd's. By the rules of Lloyd's Craies; and University, by Prof. T. E. Holland); and Injunction, by a ship may be surveyed at any time within twelve months of the date Master Burney. The article on Income Tax, by Mr. W. F. Craies when the survey is due. In the present case the survey took place eight gives a classified account of a difficult and complicated subject. As months before the due date ; but, if it had not taken place when it did, far as we can see, the information supplied in these volumes is full, the ship must have been placed in dry, dock for the purpose. The correct, and well arranged. Mr. Wood Renton has secured com- defendants contended that, under the circumstances, the expenses of petent help in bis undertaking, and by the efforts of himself and the getting the ship into and out of the dock, and the dock dues during the publishers it is being brought out with very praiseworthy rapidity. time when the dock was used for the purposes of the plaintiffs as well as When complete it will form a very serviceable compendium of English for the repair of the ship, for which the defendants were liable, ought to
be shared between the parties. Mathew, J., upheld this contention, law.
holding that the case came within the principle of the Marine Insurance
Co. v. China Transpacific Steamship Co. (11 App. Cas. 573), generally known BOOKS RECEIVED.
as the Vancouver case, and the learned judge therefore gave judgment for
the defendants. The plaintiffs on appeal contended that the Vancouver A Digest of the Law of Agency. By WILLIAM BOWSTEAD, Bar case was distinguishable. rister-at-Law. Second Edition. Sweet & Maxwell (Limited). The Court (CHITTY and COLLINS, L.JJ., A. L. SMITH, L.J., dissenting),
The Principles of Equity. Intended for the Use of Students and having taken time to consider its judgment, dismissed the appeal. the Profession. By Edmund H. T. SNELL, Esq., Barrister-at-Law. A. L. SMITH, L.J., in the course of a written judgment, said that the Twelfth Edition. By ARCHIBALD BROWN, Esq., M.A., B.C.L., Bar- important point to be determined was whether when a ship put into dry rister-at-Law. Stevens & Haynes.
dock in the present case into a wet dock with a pontoon therein) in order
to repair damage occasioned by a sea peril for which underwriters alone The Merchandise Marks Acts. By G. B. ELLIS, Fellow Inst. P.A.' were liable, the cost of piloting, towing, and other expenses for getting Solicitor of the Supreme Court. A Paper read at the One Hundreth the ship into dock for repair and of getting her out again when repaired Ordinary Meeting of the Chartered Institute of Patent Agents, held were to borne by the underwriters, or whether those expenses were to be on the 18th of February, 1898. Spottiswoodo & Co.
shared between the shipowner and the underwritera, if the shipowner, Alphabetical Table of Public General Acts in Force Relating to her surveyed so as to enable her to keep her class, or for any other
after the ship was in dock, took advantage of the ship being there to get England, 20 Hen. 3 (1235) to 60 & 61 Vict. (1897). By PAUL
It was said on bebalf of the underwriters that the STRICKLAND, Barrister-at-Law. William Clowes & Sons (Limited). principles laid down by the House of Lords in the Vancouver case shewed
Parish Councils. Some Notes on the Local Government Act, 1894, that these expenses should be shared. It became, therefore, necessary to and Suggestions for an Amendment Act. By J. HARRIS STONE, a certain, the principles laid down in that care, because unless they M. A., Barrister-at-Law. Stevens & Sons (Limited).
covered this case he had no doubt that these expenses would fall wholly
on the underwriters. In his view the question of sharing the pilotage, The Law Quarterly Review. Edited by Sir FREDERICK POLLOCK, towage, and other expenses necessary to take the ship into and out of Bart., M.A., LL.D. April, 1898. Stevens & Sons (Limited). dock was not under consideration in that case. The only question
argued and determined was the sharing of the dock dues after the ship had arrived therein, which dues were incurred during that portion of time
when the concurrent operations of the shipowner and underwriters on the CORRESPONDENCE,
sbip were going on. The Vancouver case, therefore, was no authority upon
the question of the pilotage, towage, and other expenses of getting the CONVEYANCING COSTS.
ship into dock. It was said that the principles underlying the decision
covered the point now raised. The decision in the Vancouver case was that [To the Editor of the Solicitors' Journal.]
where a ship was insured against perils of the sea and was placed in dry Sir,—There are two matters relating to the conveyancing branch dock in order to carry out repairs which the shipowner for his own of the profession wbich appear to call for some alteration.
purposes desired to execute (i.e., scraping and painting the ship's bottom), The first is that the scale fee for a lease is held to include the cost which expenses the shipowner alone had to bear, yet if, when the ship got of a preliminary agreement. In my experience there is often into dry dock, it was discovered that by reason of a peril insured against as much, or more, trouble in settling the terms of a lease than damage had been occasioned to the ship wbich had to be repaired at the those of a sale and purchase, for which the scale fee is by no means expense of the underwriters alone, the dock dues incurred during those an adequate remuneration. It would, I suhmit, be only reasonable writers must be shared between them. It was said by the plaintiffs that
concurrent operations for the respective purposes of shipowner and underand just to the profession to be allowed to charge a negotiation fee The Ruabon put into dock solely to repair damage for which the underwriters where the terms are arranged by the solicitor.
were alone liable and not for any purpose of the shipowner's, and that the The other matter relates to the statutory provision which throws pilotage, towage, and other expenses were incurred solely on the underupon a purchaser the cost of procuring evidence to establish the writers' account. It was said by the underwriters that if these expenses vendor's title. I have recently had a case where the vendor professed had not been incurred the ship would not have been in dock and the to sell as heir-at-law, to establish which involved the making out of shipowner would not have had the benefit of her being there to get her & pedigree (from information furnished by his solicitor) and obtaining surveyed for her class. But the Vancouver case did not lay down that about twenty certificates—besides statutory declarations as to whenever a person incidentally obtained a benefit he muet necessarily
which had not been incurred on bis account. share expenses
This, I identity, &c.--for all of which the purchaser had to pay,
As regarded submit, is very unfair on him and calls for some modification of the the dock dues, he agreed that these must be shared, for they had been
incurred by reason of the common user of the dock for the purpose of rule in question.
the two. If the £25 claimed in that case were for dock dues, then the I should hope that some other members of the profession will be Vancouver case covered them, but the pilotage, towage, and other expenses pleased to express their views on the above; and if our friends on the were outside the decision and principles laid down in the Vancouver case. Council in Chancery-lane could be induced to deal with these The underwriters now for the first time, so far as he knew, set up that matters, some amendment might be obtained.
S. A. RAM. where there was an expenditure solely on their own behalf, this expendi.
ture was nevertheless to be divided or otherwise shared between them and the shipowner. His lordship did not agree with that contention. The
principle upon which the Vancouver case was decided was that, if there be Mr. Justice Bruce, says the Globe, in presiding on Wednesday night at an employment for two purposes and expenses for these two purposes a lecture delivered at Newcastle to a class of coach-making students, were incurred in common, then each person who utilized the occasion explained his qualification for holding the reins of the meeting by remark: mụst bear his share of the expenses incurred; but if the employment was ing that “conveyancing” was a very important branch of the law, and only, for one purpose, then the old principle, that he for whom the no man ought to have any pretensions to be a lawyer who could not drive employment took place must pay the cost, was left untouched. What be & coach-and-six through an Act of Parliament.
had said as to taking the ship into dock applied to taking her out. If all
or any part of the £25 was for dock dues whilst the common user was | 80, and 46 W. R 220), who had held that funds appointed by the will, going on, tbat, as before stated, would come within the decision in the exercising a general power of appointment, of a married woman who had Vancouver case; but that was not the real point which the parties wished obtained a protection order under the Matrimonial Causes Act, 1857, were to have decided. He differed with regret from Mathew, J., and the liable for a debt contracted by her after the date of the protection order. other members of this court, but in his opinion the appeal should be in February, 1880, Mrs. Walker (otherwise Hughes), obtained, under the allowed.
Matrimonial Causes Act, 1857, an order protectivg her property against CHITTY, L.J., read a judgment in which he said that the amount in her husband, Walker. The order was never discharged. By a deed dated controversy was small, but the question was one of importance to ship the 6th of March, 1880, Mrs. Walker covenanted with J. C. Stogdon, her owners and underwriters. It was whether the expenses of taking the solicitor, to pay to him the sum of £450, and any other sum which might steamship Ruabon into and out of the pontoon dock and placing her there, become due on the footing of the security therein contained, on the 30th and the dock dues whilst she was there, ought to be apportioned between of March following, together with interest thereon in the meantime at the the owners and the underwriters, in the circumstances of this case. The rate therein mentioned. Mrs. Walker died on the 24th of March, 1896, particulars of expenses, amounting to £55, consisted of boat hire to and without having paid the money due under the deed of March, 1880. By from the pontoon and Roath basin, piloting the veseel on and off the pon her will she had appointed certain funds over which, by virtue of a deed toon, towing the vessel on and off the pontoon, labour taking the vessel dated the 23rd of July, 1894, she had a general power of appointment. from the east dock to the pontcon and taking her from the pontoon to She left no means except the funds so appointed. An action having been the Roath basin, and docking and undocking, including tide on and tide brought for the administration of her estate, Stogdon’s assignee took out off and use of patent shoring. This last item (£25) was paid to the Cardiff a summons asking that bis claim to prove as a creditor of Mrs. Walker's Pontoon Co., and appeared to be for dock dues. The other items were estate for (inter alia) the sum of £450 and interest due under the contract paid to other persons. It was admitted that all the items were necessarily contained in the deed of the 6th of March, 1880, might be allowed. incurred in connection with the docking. The shipowners contended Kekewich, J., decided that the appointed funds were liable to pay the that the wbole of these expenses fell on the underwriters. If they ought debts due under the deed of 1880, and accordingly allowed the claim. to be apportioned it was conceded that the apportionment should be in Mrs. Walker's executor appealed. equal ebares. The ship was taken to and placed on the pontoon for The Court (LINDLEY, M. R., and Rigby and VAUGHAN WILLIAMS, L.JJ.) the purpose of repairs, the burden of which fell on the underwriters. dismissed the appeal. While the ship was on the pontoon and after she had been opened out LINDLEY, M.R , said: I think the judgment of the learned judge in the the owners availed themselves of the opportunity of having her surveyed court below, or the order he has made, is quite correct. The first part of for the purpose of maintaining her classification, and they obtained the the order declares that the court is of opinion that the fund appointed by required certificate. The time had arrived when they were entitled, accord. the will of Agnes Ann Hughes is a sets for payment of the debts of the said ing to Lloyd's rules, to have her examined for classification, though there still testatrix, including the amount (if any) due under the indenture of the remained some months to run before she would have lost her classification if 6th of March, 1880. That is the first thing. It appears to me that the not resurveyed. It was admitted that docking was necessary for the vessel to learned judge was perfectly right there, because when you bear in mind pass her survey. In the Vancouver case the ship was taken into dock by that Mrs. Walker had on the 9th of February, 1880, obtained a protection the owner for the purpose of repairs, the expense of which fell on the order, and was therefore, under the provisions of sections 21, 25, and 26, owner alone. While there it was discovered that she had sustained injury of the Divorce Act, 1857, in the position, as from that date, of a feme sole, wbile at sea to her stern-post. The burden of these repairs fell on the capable of contracting debts and obligations, it is plain that this case underwriters exclusively. There were three common days while the ship is taken quite out of the principle applied by Kay, L.J., in Re Roper, was in dock during which both sets of repairs were being done simul- Roper v. Doncaster (36 W. R. 750, 39 Oh. D. 482). The ratio decidendi of taneously. Neither set of repairs interfered with or delayed the execu that case was that a married woman had not “debts" in any accurate tion of the other. Each set required the whole of the three daye. This sense of that expression. We start, then, with that fact, that this lady court and the House of Lords held that, inasmuch as the dock was in was in the position of a feme sole for the purpose of contracting debts. It fact being used for both purposes during the three days, the dock dues is plaia that she did contract debts. Now, if you turn to section 4 of the for those three days bad to be borne by the owner and the underwriters in Married Women's Property Act, 1882, it runs thus : "The execation of equal shares. The question here was whether this case was governed by of a general power by will by a married woman shall have the effect of the Vancouver case. It was argued in this court for the appellants that, making the property appointed liable for her debts and other liabilities in whatever the decision might be as to the pontoon dues (£25), no part of the same manner as her separate estate is made liable under this Act.” If the expenses of taking the ship to and from the pontoon should be thrown she has debts and liabilities when she makes the appointment why on the shipowners. The court were informed that in the Vancouver case should not section 4 apply to the case? It would, I think, be putting the expenees of taking the ship into and out of the dock were not in con- far too narrow a construction on this section were we to adopt Mr. troversy in the action, and that the cost of docking and undccking had Swinfen Eady's suggestion and to say that its provisions do not apply to before the action been apportioned in the arerage statement. It appeared debts and liabilities which the married woman already had when the Act to him that the present case was not distinguishable from the Vancourer came into operation, although, at the same time, those provisions make case. The pontoon dues fell within the actual decision. He understood the fund over which she bas a general power of appointment liable that decision to be that on the question of actual user of the dock, while for her debts in general. That would be far too narrow a construc: the dock was being used simultaneously for shipowners' and tion to put on the Act of 1882. That brings me to the second underwriters' purposes, it was immaterial for whose purposcs the point, which at first I thought a little more difficult. The learned ship was first brought into dock. That did touch the judge has declared that upon the true construction of the deed of question as to the expenses of taking her in and out. In 1880, the covenants extend to all sums (if any) due from the bis opinion, the principle of the decision covered those expenses. testatiix, not exceeding the sum of £800 with interest on all such sums. Those expenses were necessarily incurred in connection with the docking. She assigns certain property as a security for that debt. At first sight it They were strictly incidental to the operation of docking. They seemed might appear that Mr. Swinfen Edy's construction was right. Bat on to him to be mere accessories which ought to follow the principle. They further considering the view of the learned judge, I am of the same were not in any way occasioned by the condition of the vessel or by opinion, that this covenant applies only to the sum of £150 and to such reason of her baving been disabled by sea damage for which the under- sums as might become due before the 30th of March, 1880. Then comes writers were liable. Had they been made more onerous in the whole or in this clause, which is somewhat unusually worded, and which follows what part by reason of the ship's disability arising from sea damage, the case I have already read. It runs thus: “And it is hereby agreed and declared would have stood differently, and they would have fallen, in the whole or by and between the said parties hereto that these presents and the in part, as the case might be, on the underwriters exclusively. He agreed security hereby created shall stand good and be available to secure the that, if a ship were disabled at sea at a distance from a port and required repayment to the said John Cole Stogdon, his executors, administrators, the assistance of a tug to tow her, the expenses of any such towage would and assigns of all principal moneys, interests, costs, fees, and expenses undoubtedly fall upon the underwriters. He excluded anything of the which are now respectivelý due, or which shall or may at any time herenature of a voyage, and any expense arising from the disability of the after during the continuance of this security accrue due or become payship within the policy. In his opinion it made no difference whether the able by the said Agnes Ann Walker, her heirs, executors, or adminisnecessary expenses of getting the ship in and out were paid to the dock trators to the said John Cole Stogdon, his executors, administrators, or company or to some other person. His lordship concluded by saying that assigns by virtue of these presents and of the premises, or otherwise howhe differed, though with reluctance, in some respects from the judgment soever. Then it is provided that the security shall not extend to cover & of A. L. Smith, L.J. For the above reasons, in his opinion, the appeal larger sum than £800, with interest. I read that clause in this way. ought to be dismissed.
The words “these presents are addressed to the covenant, and the Collins, L.J., read a judgment to the same effect as that of Chitty, words “the security hereby created” to the assignment. The question L.J. Appeal dismissed. -COUNSEL, Cohen, Q.C., and Montague Lush; is, what does the deed say about these presents and about “the security Joseph Walton, Q.C., and L. L. Batten. SOLICITORS, Botterell & Roche, for hereby created " I must say I can see no reason why its plain words Vaughan & Hornby, Cardiff; Waltons, Johnson, Bubb, g Whatton.
should be cut down so as to apply only to the £450, or to the assign: (Reported by F. 0. ROBINSON, Barrister-at-Law.) ment, as distinguished from the other part of “these presents,"
means the covenant. Then there follow words which I will not read, Re HUGHES, BRANDON v. HUGHES. No. 2. 18th March. because they do not throw much light on that with which we have to deal. MARRIED Woman-PROTECTION Order—"DEBT”—Power to CoNTRACT than £450, but that this declaration does ; and I think he is right
Kekewich, J., held that the covenant does not apply to anything more DEBTS-LIABILITY AS A "FEME SOLE”—GENERAL Power of APPOINT- think the decision appealed against is right on both points, and that the MENT, EXERCISE OF LIABILITY OF PROPERTY APPOINTED TO Dexts AND appeal must be dismissed with costs. OTHER LIABILITIES-MARRIED WOMEN'S PROPERTY ACT, 1882 (45 & 46 Vict. c. 75), s. 4–MATRIMONIAL Causes Act, 1857 (20 & 21 Vict. c. 85), Eady, Q.o., and Joseph Tanner; Warrington, Q.O., and A. Dauney. Soli•
Rigby and Vaughan WILLIAMS, L.JJ., concurred. --COUNSBL, Swinfen 88. 21, 25, 26.
CITORS, G. S. & H. Brandon ; J. C. Stogdon. This was an appeal from a decision of Kekewich, J. (reported ante, p.
[Reported by R. C. MACKENZIE, Barrister-at-Law.]
MANNERS v. S. PEARSON & son. No. 2. 2nd, 3rd, and 23rd March.
was clearly expressed by Lord Eldon in Cash v. Kennion (11 Ves. 314). At
p. 316 he said: “I cannot bring myself to doubt that where a man PROCEDURE-ACTION FOR Account_FOREIGN CURRENCY-RATE OF Ex- agrees to pay £100 in London on the 1st of January he ought to have CHANGE-DATE OF JUDGMENT-DAMAGES.
that sum there on that day. If he fails in that contract, wherever the Plaintiff's appeal from a decision of Kekewich, J. The action was creditor sues him the law of that country ought to give him just as much brought for an account of what was due from the defendants to the as he would have had if the contract had been performed." The applicaplaintiff as the legal personal representative of a Mr. Morison, under a tion of this principle to various circumstances is illustrated other contract entered into between him and the defendants. By that contract decisions (e.9., Cockerell v. Barber (16 Ver. 461), Scott v. Bevan (2 B. & Ad. certain sums of money in Mexican dollars had to be paid by the defendants 78), Bertram v. Duhamel (2 Moo. P. C. 212)); but it is unnecessary to to Morison, and the questiou at issue was how the account ought to be refer to them at length, and I pass to the facts of the present case. taken in this country, and at what times the sums payable in Mexican It must be borne in mind that for two years after Morison's dollars ought to be reckoned in English money, and how the equivalent death he had no legal personal representative to whom the defensums in English money ought to be calculated. The contract was dated dants could pay anything. During all that time the defendants the 6th of October, 1891. It was in the English language, and was made did not break their contract in not making the payments which they had between Morison, described as of the City of Mexico, of the one part, and agreed to make, and, there being no breach of contract, damages for the defendants, described as of 10, Victoria-street, Westminster, and non-payment during that time are out of the question. Moreover, there thereinafter called the contractors, of the other part, and by it the is no evidence that interest is payable by the law of Mexico on debts in defendants agreed to pay Morison (1) £595 178. 63. in English money on respect of which there is no contract to pay interest, as is the case here. the execution of the agreement; (2) lc. in Mexican currency for every When in May, 1896, the plaintiff became Morison's administrator he cubic metre of certain excavation works mentioned in the agreement. became entitled to demand from the defendants, first, payment at once This money was payable from time to time as aud when the same should in Mexican dollars of all arrears due under the contract; secondly, paybe received by the defendants from the junta or committee of management ment in future, in Mexican dollars, and at the stipulated times, of the of the drainage works of the city and valley of Mexico. The £595 178. ed. amounts which should thereafter become due under the contract. was duly paid, and so long as Morison lived the defendants paid him all Failure by the defendants to make these payments would be breaches by that became due to him under the contract. He died in June, 1894, and them of the contract, and would expose them to claims for damages in no one became his legal personal representative until May, 1896, when the some shape or other. How these damages would have to be ascertained plaintiff took out letters of administration to his estate. In June, 1896, by an Euglish court if it became necessary to assess them is a question of the plaintiff brought this action for an account. It came on for trial on some difficulty, as will be seen by turning to Story's Conflict of Laws the 4th of November, 1897, and the court then declared, inter alia, that (sections 308 e seq) and Sedgwick on Damages (3rd ed. p. 250). But, the plaintiff was entitled to have an account taken of what was due and for reasons which I proceed to state, I am of opinion that no claim by the payable to him as Morison's legal personal representative under and by plaintiff to damages in any shape can be supported in the present case, virtue of the above agreement, and in taking such an account the The order of the 4th of November, 1897, was the judgment on the trial defendants were to be credited with a certain sum of £327, as to which of the action, ard it limits the right of the plaintiff to an account of what no question arose. The defendants had always kept proper accounts of is due to him from the defendants under their agreement with Morison. the sums payable to Morison's estate in Mexican dollars, and the plaintiff This judgment excludes all claim to dimages for non-payment of accepted these accounts as correct. According to them a balance of particular sums charged against the defendants in taking the account. 19,366 dols. was due from the defendants to the plaintiff. On tho If the plaintiff wanted to charge the defendants with damages in accounts two questions arose. First, the plaintiff contended that the taking the account he should have obtained some declaration or dollars ought to be turned into English money whenever any dollars inquiry entitling him to such damages. Before the Judicature Acts ought to have been paid by the defendants; whilst the defendants con
ever heard of investigating damages in taking an account tended that the ultimate balance only ought to be turned into English in Chancery of money due under a contract. Since the Judicature money. Secondly, the plaintiff contended that, even if the defendants Acts damages can be given in the Chancery Division where they were right in their first contention, this balance ought to be turned into could not have been given before ; but even now a judgment or English money on the 31st of August, 1896, when the excavating work order for an account of what is due under a contract does not involve was finished and paid for by the Spanish Government. At that date an inquiry as to damages in taking the account. The absence from Mexican dollars were worth 23. 6d. The defendants, on the other hand, the judgment of the 4th of November, 1897, of any declaration or inquiry contended that the balance ought to be turned into English money on the as to damages is easily explained by the long delay in obtaining letters 13th of November, 1897, when the amount due was first ascertained, and of administration to Morison's estate, during which time no damages when the dollar was worth only 1s. 104d. In these circumstances the could be payable by the defendants ; but even as to damages since the plaintiff served the defendants with a notice of motion to give effect to plaintiff obtained letters of administration the judgment pronounced is his views. The learned judge refused the motion with costs. The fatal to the plaintiff's first contention, that he is entitled to have all sums plaintiff appealed.
payable by the defendants turned into English money at the times when The Court (LINDLEY, M.R., and Rigby, L.J.; dissentiente Vaughan those sums became payable according to the terms of the contract. WILLIAMS, L.J.) dismissed the appeal.
Such a contention can only be supported on the theory that the defenMarch 23.- LINDLEY, M.R., stated the facts, and continued : Before dants are liable for damages for default in payment. To substitute considering the questions raised by this appeal, it is necessary to ascertain English money for Mexican dollars every time a payment ought to have the grounds on which®any judgment or order for payment in English been made is not to take an account of what is due under the contract, money can be properly made in a case where the plaintiff sues upon a
but to give damages for every breach of it which the plaintiff can prove contract to pay in the currency of a foreign country. The terms of that the defendants committed, which is a totally different matter. Even the contract confer no right to payment in English money. If the
as regards the balance of 19,366 dols. found due to the plaintiff, I see no defendants had tendered to their creditors, either in Mexico or wherever grounds for awarding him damages for the non-payment of that sum they demanded payment, the amounts due from them in Mexican dollars before it was ascertained. The plaintiff urges that it now appears that at the proper times, they would have offered to perform their obligations this sum ought to have been paid on the 31st of August, 1896; but how in strict accordance with their contract. The necessity for considering could it have been paid then when no one then knew what the amount what amount the defendants ought to pay in Eaglish money arises simply payable was ? The sum in question is the balance due on taking the from the fact that the plaintiff, having the right to sue the defendants in whole account. Under the judgment of the 4th of November, 1897, the this country for a breach of their contract, has chosen to sue them here defendants are not chargeable with damages for delay in accounting, instead of in Mexico; and, speaking generally, the courts of this country any more than they are chargeable with damages for not punctually payhave no jurisdiction to order payment of money except in the currency of ing sums properly placed to their debit in taking the account. Moreover, this country. Whatever sum is ordered to be paid, whether for principal, no undue delay in accounting was proved, so far as we know. As soon interest, or damages, must be expressed in English money, or such order
as the balance was ascertained the defendants offered to pay it to the cannot be enforced by the ordinary writs of execution. Whether before plaintiff either in Mexican dollars or in English currency equal to their the Debtors Act an order in Chancery for the payment of so many
then value, as the plaintiff might prefer. This offer the plaintiff declined. Mexican dollars could have been made and could have been enforced by In my opinion the defendants have been in the right throughout in this attachment I do not pause to inquire. With this possible exception particular controversy, having regard as we must to the terms of the the above statement is correct, and affords the true explanation contract and to the judgment of the 4th of November, 1897, which is not of the necessity for considering how much money in English currency the appealed against. The appeal, in my opinion, fails, and ought to be defendants ought to pay the plaintiff. If the defendants were within the dismissed with costs. jurisdiction of any other civilized State and were sued there, as they Rigby, L.J., gave judgment to the same effect. might be, the courts of that State would have to deal with precisely the VAUGHAN WILLIAMS, L.J.-The only question argued before us in this same problem, and to express in the currency of that State the amount case has been as to what is the proper mode of taking the account ordered payable by the defendants instead of expressing it in Mexican dollars. If in an action brought in this country by a creditor to have an account taken this be the true explanation of the necessity for expressing in English of moneys payable abroad by the defendant in foreign currency, whether money what the defendants ought to pay, it follows that such necessity such account should be taken on the relative values of the English and does not arise until the court orders payment. But it does not follow foreigu currencies as of the date of taking the account, or as of the dates that the eum to be inserted in the order is the equivalent at that time of when the debts became payable, or as of some other and what date or the moneys payable by the terms of the contract, for the defendants may dates. It was not questioned on either side but that the total debt be liable, not only to pay those sums, but also damages in the shape of ordered to be paid after taking the account must be expressed in English interest or otherwise for not having paid them at the proper time. The currency and that the amount in English currency must be arrived at by obligations, if any, of the defendants in this respect must be determined the real value in English currency of the foreign currency at the place before the amount for which they are liable can be calculated and expressed where payable as a purchasable commodity-i.e., in practice, according to in any order for payment. The foregoing considerations furnish the the rate of exchange existing at the particular time between the currencies. principles on which the present case must be decided; and that principle. The only question has been as to what that particular time was. Now I
will first consider the question irrespective of the form of action. It
Re NICKELS. NICKELS v. NICKELS. Stirling, J. 31st March. seems clear that, in an action in whatever form in the English Courts for the recovery of a debt payable in foreign currency, the amount of the APPROPRIATION-EXECUTORS AND Trustees – No EXPRESS Power to ApproEnglish judgment or order must be expressed in English currency, and tbat, unless the relative values of the respective currencies are fixed This was a summons wbich raised the question as to whether executors by statute or some authority binding the English courts or by the and trustees could, in the absence of an express power, make an effectual agreement of the litigants, the amount of the English judgment or order appropriation of any portion of a testator's estate. The facts were as must be based on the quantity of English sterling which one would have follow: The testator, Christopher Nickels, gave all his residuary estate to to pay here to obtain in the market the amount of the debt payable in his trustees upon truets for sale and investment and to pay an annuity to foreign currency delivered at the appointed place of payment-i.e., the his wife during her life. Then he directed one-half of one-sixth to be amount payable according to the rate of exchange. It seems plain that invested and accumulated for twenty-one years, and during that period to this mode of computing the value of foreign currency in Euglish sterling pay the income of the other half to his son Edward Nickels, and after the and that converting the one currency into the other is based upon expiration of the twenty-one years to pay the income of the whole to damages for the breach of contract to deliver the commodity bargained Edward Nickels for life, and after his death to his widow, and after her for at the appointed timed and place, and, if this is so, it follows that the decease upon trust to transfer the capital of the trust funds to the date as of which that value must be ascertained is the date of the breach, cbildren of Edward Nickels who attained twenty-one in equal shares. and not the date of the judgment. If this is the general rule in actions Then came a power of maintenance and also a power to advance to any for the recovery in English courts of sums payable abroad in foreign child of Edward Nickels a share not exceeding one-half of the presumpcurrency, I see no reason why a different rule should be applied in a case tive share to which such child would be entitled. The testator also emwhere the form of action is, as it is in this case, an action for an account. powered the trustees to apply for the benefit of Edward Nickels any It may be that in the present case it might have been troublesome to portion not exceeding one-half of his sixth share. Then came similar ascertain the dates at which the various sums payable as commission in trusts and provisions as to four other sixth shares for the benefit of the dollars became payable, but this would not, in my judgment, have been a testator's other sons. The remaining one-sixth was given upon similar sufficient reason for fixing the amount of the result of the account in trusts for the benefit of the testator's daughter and her children, except Euglish sterling according to the value of the dollars at the date of the that there was no power to apply one-half of the daughter's share for her completion of the taking of the a.count. This difficulty, however, does own benefit. The trustees were further empowered to apply any portion not arise in the present case, because the plaintiff is willing that the value not exceeding one-third part of the share or shares of the trust fund to shall be taken of the dollars as on the 31st of August, 1896, the date as the income of which any of the testator's six children should be entitled, of which the defendants in fact rendered their account, including all the for or towards putting him, her, or them in business, or otherwise sums now claimed by the plaintiff. I think that the order of Kekewich, advancing him, her, or them. The testator died in 1860. The period of J., ought to be annulled by declaring that the plaintiff is entitled to have accumulation came to an end in 1881 and the sons and daughter applied the amount of Mexican dollars, found to be due by the account of the for advances. The sons received one-half of one-sixth and the daughter 31st of August, 1896, converted into English money sterling at the rate one-third of one-half of her sixth. The trustees also set aside £300 of exchange prevailing between the said currencies on that day. It seems London and Greenwich 5} per Cent. Ordinary Stock, and £1,053 London, to me that to hold otherwise would make the plaintiff's remedy for the Chatham, and Dover 41 per cent. Debentures, and paid the income on recovery of what is due to him differ according to the form of procedure these stocks to the daughter during her life. In the trustees' cash book and according as he brings his action in the Queen's Bench Division or in these stocks were entered as "allotted to Mrs. Morton as the balance the Chancery Division. Appeal dismissed. -CIUNSEL, Henry Terrell, Q.O., remaining two-thirds set aside for her children." Under the powers in and Cecil Walsh; Renshaw, Q.C, Birdswell, and Tanner. SOLICITORS, the will the trustees made advances to the children of the sons and the Angove f: Bromwich ; Jaques gi Co., for Samuel IVright & Co., Bradford. daughter. The advances to the daughter's children were all made out of (Reported by W. SHALLOROSS GODDARD, Barrister-at-Law.)
the Greenwich Stock. On the daughter's death her share became divisible and a question was raised whether these stocks had been validly appro. priated towards her share.
STIRLING, J., held that the trustees had in fact intended to appropriate
these stocks towards the daughter's share, and continued : The question High Court-Chancery Division.
is whether it was within the powers of the executors and trustees to make
this appropriation. No authority has been cited to chew that it was not Re ATKINSON. WALLER v. ATKINSON. Stirling, J. 31:t March.
within their power. What is relied on is a statement in Lewin on Trusts, Married Woman-Will-ProBATR BY HUSBAND – Asset to Disrositions where there is no express power to appropriate trustees will not act wisely
9th ed., at p. 667. Now, that statement is merely to this effect, that -PRACTICE OF PROBATE DIVIsion.
in making any appropriation without the sanction of the court. But the This case raised the question whether under the present practice of the qretion here is, suppose a trustee does make the appropriation, is the Probate Division a husband by proving his wife's will has thereby assented appropriation bad ? In Lewin it is said that it is, but it is also said to the dispositions therein contained. Mrs. Atkinson, the lady in ques that the court can make the appropriation, and that seems to me to sup: tion, died in February, 1892, having by her will dated the 6th of May, port the view that the trustees can, because the court cannot alter the 1880, appointed her husband executor thereof, and after bequeathing å rights of the parties. But beyond that there are two ca zes which support legacy of £10,000 to the next-of-kin of Lavina Waller bequeathed the the view that the trustees have power in a proper case to make a specific residuc of her property to her husband. At her death Mrs. Atkinson was appropriation. The first is Re Lepine (1892, 1 Ch. 210, 40 W. R. Dig. interested in certain personal property, but had no power of disposition 89), and the second is Re Richardson (4À W. R. 279; 1896, 1 Ch. 512); of it by will without the assent of her husband. ir. Atkinsou proyed What was done here was that the trustees set apart a certain amount of the will in May, 1892, in accordance with the present practice of the the estate to put the daughter and her children on the same footing as the Probate Division - that is to say, administration was granted to him in
It seems to me that they have done that in fact, and that it was general terms, without any limitation. This was an application by ia their power so to do. I think, therefore, that the appropriation was originating summons by the next-of-kin of Lavina Waller against Mr. good.-Tounsel, Coldridge; Rowden; Gatey; Stewart Smith; Buckmaster. Atkinson asking for payment of the said legacy of £10,000, the conten- SOLICITORS, E. G. Saunders ; T. W. Hall; Douglas- Norman & Co. tion on the part of the plaintiff being that by proving the said will Mr.
[Reported by J. I. STIRLING, Barrister-at-Law.] Atkinson had assented to such legacy. STIRLING, J., stated that under the practice which formerly prevailed in
Re SERLE. GREGORY v. SERLE. Kekewich, J. 2nd April. the Probate Court with reference to the wills of married women it was LANDLORD AND TENANT-BREACH of Covenant-NotiCE OF "PARTICULAR necessary that two grants should be made-first of all, to the executor
BRBACH”-FORFEITURE-DAMAGES. named in the will probate was granted limited not only to such property as the testatrix had a right to dispose of, but also to such property as she
On the 31st of October, 1876, a house in Wellclose-square, Middlesex, had disposed of by her will; and secondly, a grant of administration forty-one years, at a yearly rent of £19. The lease contained a covenant
was leased by M. A. K. Harding to Thomas Serle (since deceased) for cæterorum was made to the husband. After the passing of the Married by the lessee to well and sufficiently repair, uphold, and keep the premises, Women's Property Act, 1882, this practice was found to be inconvenient, and all improvements and additions, and all and every party and other and in the year 1887, first by the decision of Butt, J., in Re Price (35 walls and posts, &c., and other appurtenances, &c., with all needful and (set out in 31 Solicitors' Journal, at p. 409), the practice was altered, require. And in every third year of the term to paint all the outside and under such altered practice the Probate Division now requires the wood and iron-work belonging to the premises ; and also, within the first executor to take administration in the general form. Although it was established in Ex parte Fane (16 Sim. 406) that under the old practice paint in like manner and whiten all the internal parts where usually
seven years of the term, and within every subsequent seven years thereof, probate in general terms by the husband operated as an absolute aseent painted and whitened. The lease also contained a proviso for re-entry for by the husband, yet the Court of Appeal in Smart v. Tranter (38 W.R 530) held that the new practice does not alter the rights of parties. His
breach of the covenant to repair if the lessee should fail lordship therefore came to the conclusion that as a husband has now no
months to remedy the breach. On the 11th of August, 1893, the repre. choice, but is compelled to take administration in general terms, the (1), served the following notice on the administrators of the estate pe
sentatives of the lessor, in pursuance of the Conveyancing Act, 1881, 8. 14 assented to the dispositions of the will.–Counsel, Butcher, Q.C., and committed breaches of the covenant contained in the said lease. First, Methold; Jenkins, Q C., and Stewart ömith. Solicitors, Learoyd, James, 8 that you have not kept the said premises well and sufficiently repaired, Mellor, for Learoyd & Co., Huddersfield; Busk, Mellor, $ Norris, for sale, and the party and other walls thereof ; secondly, that you have not S:ddm, & Co., Manchester.
painted the outside wood and iron-work in every third year of the said [Reported by W. Scott Thompson, Barrister-at-Law.]
term; thirdly, that you have not, within each seven years of such term,