« PreviousContinue »
work. He has been removed just when a scheme is in progress days occur at a period when the offices of the court are closed, as which, if successful, will very speedily render his book, to a large where an appellant received a case on Good Friday and transextent, obsolete.
mitted it on the following Wednesday (Mayer v. Harding, 2 Q. B.
410). AMONG THE CHANGES which have been introduced in the Railway and Canal Traffic Bill in the House of Lords, there is one the
THE LORD CHIEF JUSTICE was engaged on Wednesday last in the indirect importance of which has not, we believe, been generally somewhat unusual duty of charging the Grand Jury for Middlesex appreciated. As the Bill now stands, the commission is to consist on an indictment against a local authority for polluting the Thames of two permanent appointed commissioners and three ex officio with sewage. It is stated that this is the first indictment which has commissioners. Of the three ex officio members one is to be been presented to this Grand Jury since the Jamaica prosecution, appointed for England, one for Scotland, and one for Ireland, and which caused the memorable controversy between Lord Chief the ex officio commissioner for each part of the United Kingdom the Middlesex Grand Jury was summoned once in every term, but
Justice COCKBURN and the present Lord BLACKBUBN. Formerly is to be one of the judges of the superior court of that part. The the Grand Juries, Middlesex, Act, 1872 (35 & 36 Vict. c. 52), s. 1, ex officio commissioner for England is to be such judge of a superior relieved the county jurors by providing that the grand jury should court as the Lord Chancellor “may from time to time by writing under his hand assign, and such assignment shall be for a period not be summoned in any term unless before the fourth day thereof of not less than five years," and regulations are to be made as to the Master of the Crown Office should have received notice of the arrangements for securing the attendance of the ex officio
some business intended to be brought before them. The duty commissioner, as to the times and place of sitting in each case, and of charging the Middlesex Grand Jury was formerly discharged by otherwise for the convenient and speedy hearing thereof. Now the senior puisne judge of the Court of Queen's Bench, who received comes the alteration to which we allude. Clause 6 provides that: an additional payment of £10 per term for so doing. It may be
remembered that this extra payment was abolished by section 29 “It shall be lawful for her Majesty, having regard to the business required by this Act to be transacted by the ex officio commissioners, and to
of the Judicature Act, 1875 (38 & 39 Vict. c. 77) subject to the the proper transaction of the business of the superior court in England, to vested interests of Mr. Justice BLACKBURN, who was the senior appoint an additional judge of such court, and from time to time to fill puisne judge of the court when the Act came into operation. any vacancy in such judgeship, and the law relating to the appointment and qualification of the judges of such superior court, to their duties and tenure of office, to their precedence, salary, and pension, and otherwise, shall apply to any judge so appointed under this section, and a judge so appointed under this section shall be attached to such division or branch this week; a plaintiff who conducted his own case before Mr.
THE IRREPRESSIBLE suitor in person has come to the front again of the court as her Majesty may direct, subject to such power of transfer Justice CHITTY occupying the time of the court for the greater as may exist in the case of any other judge of such division or branch." High Court is to be appointed in consequence of the provision for advocacy exhibited was in this case aggravated by the powerful It will be observed that, although the additional judge of the part of three days. The inconvenience usually experienced in these
cases by reason of the ignorance of the rules of evidence and of the ex officio judicial commissioner, it is nowhere provided that eloquence of the plaintiff. His desire to make a speech on every the new judge shall be such commissioner. He is to be attached occasion during the course of giving his evidence and of his crossto such division of the court as her Majesty may direct, while the examination by the defendant's counsel, as well as on the cross: commissioner is to be “ such judge of a superior court” as the Lord examination of the principal defendant, and his indignation, expressed Chancellor may from time to time assign. The probability seems in loud tones, when any irrelevant question or ill-timed speech was to be that the new judge will be attached to the Chancery objected to, many times brought down upon him a rebuke from the Division.
judge, only to be followed by further indignant speeches from the
plaintiff. After this exhibition can it be said that a suitor in perTHE ATTENTION of practitioners in courts of summary jurisdic- licence than a barrister who is acting as an advocate ? No doubt
son ought to be treated with leniency, or to be allowed any greater tion should be called to the case of South Staffordshire Waterworks Co. v. Stone (Weekly Notes, 1887, p. 130), and the strict a judge has in his hands the power to put a stop to any act tendconstruction there put upon one of the Summary Jurisdiction ing to disturb the due administration of justice or to waste the diction Act, 1879, that any person desiring to question a conviction have arrived when the judges should agree to some course of action Rules of 1886. It is enacted by section 33 of the Summary Juris- public time, but he naturally hesitates to put it in force and to of a court of summary jurisdiction may apply for a special case, which would have the effect of putting a stop to, or, at least, of and that “the application shall be made and the case stated within such time and in such manner as may be from time to time mitigating, the evils here pointed out. directed” by rules under the Act. Rule 18 of the Rules of 1886, repeating without alteration rule 17 of the Rules of 1880, directs and a copy left with the clerk of the court, and may be made at any Supreme Court of Judicature, during the year ending the 28th of
THE BALANCE SHEET of the Paymaster-General, on behalf of the time within seven clear days from the date of the proceeding to be February, 1886, has recently been issued. It is a remarkable fact questioned.” In the South Staffordshire case an oral application to that the value of the cash and securities in the hands of the pay. state a case was made to justices while sitting, and was granted by master belonging to suitors, which, up to the end of February; them in court, but no copy of any application was left with the 1884, had for many years been on the increase, has, on the last clerk, though a “notice of appeal was afterwards served upon two returns, shewn a considerable decrease. him within the seven days. The case was stated by the justices ; 1884, the property leaving out some miscellaneous items and but the court (Lord COLERIDGE, C.J., and DENMAN, J.) declined to securities expresed, in foreign currency) in the hands of the pain hear it, on the ground that they had no jurisdiction. The case i master, consisted of £4,429,079 cash and £73,931,247 portinik with principle and authority. The rule seems to be that, where a consisted of £3,931,054 e cash and £71,946,527 in securities statute confers a privilege or right, “the regulations, forms, or shewing
a decrease over
the whole period of £438,025 the sense that non-observance of them ist fatal, os i Paxative, on the cauditor-General, s attention is called to the increase -a.
and £1,984,720 in securities. In the report of Statutes, 2nd ed., p. 453), and there would be no difference suitors" funds, being : 12,056,884 since the 1st of October, 1 t. between a statute' and a rule in pursuance of a statute. que has when the Audit comice undertook its present duties with regarde power to appeal by case, that the transmission both the stage within two es ears. During the fast fifteen years the number of account, was a condition precedent to the exercise of the jurisdiction and lifarther appears tend the judicial Statistics that during time M. C. 108), the only exception being for the case where the three master's office increased from 51,623 to 61,464.
On the 1st of March,
THE SOLICITORS' JOURNAL.
589 RECTIFICATION OF DESCRIPTION UNDER THE
Simply those who enter into dealings with land in reliance on a
paper title, without taking the trouble to go and look at the subLAND TRANSFER BILL.
ject-matter of their bargain, or to make obvious inquiries sugLast week we called attention to an arguable point that will pro- gested by patent facts. bably be raised sooner or later on clause 19 of the Land Transfer Which of these two rival classes of claimants is the more entitled Bill, relating to the rectification of the “ description" of registered to protection ? estates where adverse possession has been proved against the registered owner. Another curious enquiry is also suggested by the proposed enactment. Under the Act of 1875 (section 83 (5)) the registered descrip
WILLS OF MARRIED WOMEN.
parcels,” and at what point is the substance of the estate to be to be effectual by the death of the husband during the wife's
the word "will" in the Act extends to "an appointment by will But whatever the court may ultimately hold that the clause in exercise of a power,” and every word importing the does mean, it is very clear in certain other cases what masculine gender is to extend to a female. Section 3 empowers the court will decide that it does not mean. Whatever interpre- every person to dispose of, by will, all real and personal estate tation may be put upon the words “boundaries,". extent,' or which he shall be entitled to at law or in equity at his death, and
parcels,” it is clear that they cannot mean the whole of an estate. which, if not so disposed of, would devolve upon the heir of him Whenever, therefore, adverse possession against a registered or his ancestor, or upon his 'executor or administrator. Section 8 proprietor is obtained as to the whole of an estate-that is to say, enacts that “no will made by any married woman shall be valid in the very cases where the occupier has the strongest moral claim except such a will as might have been made by a married woman to the protection of the law, and the registered proprietor has been before the passing of this Act.” By section 24 every will is to be guilty of the grossest possible carelessness and neglect—the opera- construed, with reference to the real and personal estate comprised tion of the statute will be to oust the former in favour of the in it, to speak and take effect as if executed immediately before
And this, too, not only in the case of a purchaser, but so the death of the testator, unless a contrary intention appear by the as to enable the very man, and his successors in title, who have will; and by section 27'a general devise or a bequest of the perglumbered on their rights for, say, 100 years, to require the in-sonal estate of the testator, or of personal property described in a dustrious and unsuspecting occupier to relinquish his holding at general manner, is to include any real or personal estate to which their arbitrary bidding.
the description extends which the testator may have power to Let us take, for instance, the not infrequent case of a tenant for appoint in any manner he may think proper, and is to operate as Fears at a peppercorn rent holding over after the determination of an execution of the power, unless a contrary intention appear by the tenancy; all parties being under the mistaken impression that the will. Section 24 gave to a will, and section 27 to a general He devises it to his widow as her sole provision." On going to be question arose whether these enactments applied to the will of a registered, she finds that by no means whatever can she protect married woman, having regard to section 8 of the same Act ; and Of course, the insurance fund will not help her in the least. And W. R. 242, 1 D. J. & S. 63) it was decided by Lord Hatherley, all this injustice for what? To protect the careless and negli- then Vice-Chancellor - and his decision was affirmed by Lorá object. To protect purchasers, mortgagees, and lessees of registered appointment over real estate given to the survivor of three persons land? Yes, but what sort of purchasers, " mortgagees, and fessees? pas, under the Wills Act, well exercised by a general devise
he is a fee simple owner.
from them, the solicitor-trustee may pay his partner the usual charges
by a married woman who did not become the survivor until in Noble v. Phelps (2 P. & D. 276, at p. 283, 19 W. R. 1115, at after the execution of her will. The Vice-Chancellor said: p. 1117), “Does the will of a married woman made during “The construction I give to the 8th section is, That it coverture speak and take effect with reference to property disables a married woman from doing anything which before the comprised in it as if it had been executed immediately before her passing of the Act she could not have done by reason of her cover- death ?", Mellish, L.J., in answer to it, said: “Now, certainly I ture ; it preserves the incapacity of coverture as it stood before the should be far from saying that that would not have been a very Act; but, as regards any incapacity arising from matters independ- reasonable thing to enact if the Legislature had enacted it, beent of coverture, applicable to men and women alike, the statute cause, no doubt, it very often happens that the husband and the was not intended to draw a distinction between married women wife grow old together, they both become ill together, at the and other persons." And, on the appeal, Lord Westbury said : same time almost, and, possibly, it might be a very convenient “ The objection of the appellants is founded on the 8th section thing if a married woman might make a will anticipating thu of the statute, and may be thus stated : The statute cannot be time when she should become a widow, and effectual in that applied to render valid any devise contained in the will of a event. After her husband's death she might be in a state pracmarried woman, which would not have been valid before the Act. tically incapable of making a will until she herself died. In my But the will of Margaretta Nicholl, if made before the statute, opinion, the law has not gone to that extent." Before adverting would not have been valid as an appointment of the estate in to Lord Justice Mellish's remarks, we may notice that Lord question. Therefore, say the appellants, the court cannot apply to Penzance's question itself was not, it appears to us, so expressed this will the beneficial principles and rules of construction which as to bring out the real point, as it omits reference to the cessation are introduced by the 24th and 27th sections of the Act, and which of coverture. The question intended, we think, was something are necessary to render the will a valid appointment. In other like this—Does the will of a married woman made during words, the plaintiffs contend that the application to this will of the coverture speak and take effect as if it had been executed im24th section of the statute, thereby giving a subsequent date to the mediately before her death so as to comprise property acquired after will, is to confer a testamentary capacity which would not other cessation of the coverture ? and it is clear that it is to such a wise exist, and that this is forbidden by the 8th section. They question the Lords Justice’s remarks are directed. Then, advertinsist that, if, by applying the statute, you make the will of a feme ing to his lordship’s remarks, what was said by the Lord Justice covert include that which, but for the statute, it would not, you seems to us to afford a strong ground for an amendment of the law enlarge her capacity, and make her will valid as to property in the direction indicated in his remarks; and when it is borne in of which, without the statute, it would not be a valid disposition. mind that a married woman's will may operate as an execution of It is obvious that the result of this reasoning would exclude all a general power taking effect on her surviving her husband, and, wills of married women from the benefit of the provisions of the as it appears to us, even although the power arises under her Act, wherever by virtue of its enactment such wills would receive husband's will, it is difficult to see why a married woman should a more extended operation. Such could hardly have been the not be made capable of making a will which shall be operative on intention of the Legislature. Personally she acquires no property of which she becomes the owner under her husband's enlarged capacity from the statute, although her testamentary in- will. strument or will, when made, may have the benefit of more liberal It appears to us that an amendment of the law for this purpose rules of interpretation.”
is made more desirable by the passing of the Married Women's It may, perhaps, be right to notice that in Thomas v. Jones the Property Act, 1882, inasmuch as it seems likely that by reason of testatrix died married ; but it is submitted that this was unimportant, that Act the number of married women who make their wills will for it seems clear that a general testamentary power, where not be greatly increased, and it would surely be an advantage that a limited to take effect only in the event of the husband surviving, married woman should not be obliged to make a second will in the may be exercised by a married woman so as to take effect whether event of becoming a widow and acquiring the ownership of she survives her husband or not (see 3 Dav. Prec. (3rd ed.), 186, property under her husband's will. Moreover, as Parliament has, 187). It seems also clear that a general testamentary power given by the Married Women's Property Act, recognized the capacity of to woman while sole may be exercised by her when married a married woman to manage her property and secured to her the (Sug. Pow. (8th ed.), p. 154). Then, it being clear that under power to do so, it seems well nigh absurd that she should still sections 24 and 27 of the Wills Act a general disposition in a will remain incapable of making a will while under coverture disposing made before a general testamentary power is created may operate of property which may be in her power of disposition when she as an execution of that power, even although the instrument becomes a widow. The influence of her husband must surely be creating the power in terms contemplates a prospective execution less to be apprehended in the case of property which he cannot (see, among other cases, Boyes v. Cook, 28 W. R. 754, 14 Ch. D. himself enjoy than in the case of property which he may take 53, and Airey v. Bower, 12 App. Cas. 263), it seems to follow under her disposition if he survives. An enactment that a married that a general disposition in the will of a married woman may woman shall be capable of disposing by will of any property operate as the execution of a general testamentary power, exercis- which at the time of her death may be subject to her testamentary able irrespective of coverture, which becomes vested in her under disposition would seem to meet the object. the will of her deceased husband. Then, as to separate estate, section 24 of the Wills Act must, according to Thomas v. Jones, apply to separate property in real estate as well as to a power over it.
CORRESPONDENCE. We may observe that, under the Married Women's Property
SOLICITOR-TRUSTEE COSTS. Act, 1882, it would seem that in the not infrequent case of an investment in the joint names of a husband and wife, if made after
[To the Editor of the Solicitors' Journal.] 1882, the wife would be capable of disposing by will made during pasiner of a solicitor-trustee being able to charge profit costre pobres the marriage of her contingent title by survivorship. Thus far we have considered the extent of a married woman's
the trustee himself would not be allowed them. °I thought there was capacity of disposition by will either under a power or in respect the trustee was a partnere he took no profits from the firm's busineid of separate property, and, as we said at the beginning of this and did not do the work himself, and that in that case it was held article, that capacity is ineffectual to enable a married woman by that the partners might charge in the usual way. will to dispose of property to which her title--we are speaking of
London, June 25. ownership, not power-arises under her husband's will. We have
[Our meaning, of course, was, that where the solicitor-trustee woman may exercise prospectively a power arising under hera hues them. If the partnership articles espressly provide that the soliciteit
what was said by Mellish, L.Ja, in Noble v. Willock Compras y here, wine, but shown be glady in our corespondent (whose accuracy na
referring to this question put by Lord Penzance in his judgment know) could refer us to one.-ED. S. J.]
properti efore her ertainly
In 1871 the defendant executed a deed the effect of which, if his CASES OF THE WEEK.
fatber had consented as protector, would have been to convert the estate
tail into an estate in fee simple; but, inasmuch as the father did not SHEPPARD ». THE SCINDE, PUNJAUB, AND DELHI RAILWAY purchase the fee simple from the defendant and his father, but was unable
consent, only a base fee was created. In 1874 the plaintiff attempted to 00.-C. A. No. 2, 28th June.
to obtain the consent of the latter. The defendant mortgaged the Railway COMPANT— PURCHASE OF UNDERTAKING BY GOVERNMENT-D1- property, and, on the 30th of March, 1875, he and his mortgagee, for
VISION OF PURCHASE-MONEY AMONG SHAREHOLDERS-Shares UNEQUALLY valuable consideration, conveyed the property to the plaintiff, and entered
into the above covenant. The father of the defendant died in 1884, and, This was an appeal against a decision of Kekewich, J. (35 W. R. 516), thus convert the base fee into an estate in fee simple, the plaintiff claimed
the defendant being then in a position to execute a disentailing deed, and the question being how, on the purchase of the undertaking of the specific performance of the covenant for further assurance by the execution company by the Secretary of State for India, the purchase-money was to be divided among the stock and sharehclders of the company.
of a disentailing deed. On behalf of the defendant it was urged that the The
covenant for further assurance did not extend to a future interest devolvSecretary of State had an option of purchasing the company's under: ing on the vendor, and that the parties knew the state of the title at the taking " at a cum equal to the amount of the value of all the shares and time when the deed was executed. Kekewich, J., held (34 Ch. D. 415, capital stock in the company issued or created for the purposes of the ante, p. 202) that the defendant was bound to execute a disentailing deed. railways and flotilla, calculated according to the mean market value of The Court of APPEAL (COTTON, BOWEN, and Fry, L.JJ.) agreed in such shares or stock during the three years immediately preceding the the view of Kekewich, J., subject to a question which they raised-viz., date of the purchase,'' and he was also empowered, instead of paying a whether section 47 of the Fines and Recoveries Act (3 & 4 Will. 4, c. 74) gross sum, to pay an annuity for a fixed term of years. At the time when did not prevent the court from entertaining such an action. That section, the Secretary of State gave notice of his intention to exercise his option it will be remembered, provides that “in cases of dispositions of lands of purchase the capital of the company consisted of £11,010,100 stock and under this Act by tenants in tail thereof
the jurisdiction of 14,832 sbares of £20, in respect of which only £5 per share had been
courts of equity shall be altogether excluded, either on the behalf of a called up and paid. The provisions of the Companies Clauses Consolida- person claiming for a valuable or meritorious consideration, or not, in tion Act, 1845, with respect to the making of dividends, were incor- regard to the specific performance of contracts and the supplying of porated in the company's special Acts, the profits being divisible in defects in the execution of the powers of disposition given by this Act to proportion to the amounts paid up by the shareholders. In March, 1885, tenants in tail, and the supplying under circumstances of the want of the Secretary of State gave notice of his intention to purchase the com execution of such powers of disposition
and in regard to the pany's undertaking at the price of £14,009,124 88. 3d. The question was giving effect in any other manner to any act or deed by a tenant in tail whether this sum was divisible amongst all the holders of stock and shares which in a court of law would not be an effectual disposition under this in proportion to the respective amounts of capital paid up by them in Act.” This point was reserved for further argument. - Counsel, Warmwhich case the holder of £20 stock would receive four times as much as ington, Q.C., and Russell Roberts ; Barber, Q.C., and T. Rawlinson. Solithe holder of a £20 share on which only £5 nad been paid) or whether (as CITORS, R. Chapman ; Lovell, Son, g: Pitfield. the holders of the £20 shares on which only £5 per share had been paid contended) the holders of stock ought to receive in the first instance £15 MAGNUS v. THE QUEENSLAND NATIONAL BANK-Kay, J., 25th for each £20 of stock which they held (so as to place them on an equality
June. with the holders of the shares), and the residue of the purchase-money should then be divided rateably amongst all the holders of stock and BANK LOAN ON SECURITY OF TRANSFER OF STOCK BY JOINT HOLDERSshares on the footing that five shares of £20 were equivalent to £100
RE-TRANSFER PY BANK TO NOMINEE OF ONE OF THEM-RE-INVESTMENT stock. There was no provision by statute or by agreement as to the mode
of PROCEEDS IN HIS SOLE NAME --BANK's LIABILITY FOR Loss of FUND. of division. Kekewich, J., held that the purchase-money ought to be divided among the holders of stock and shares in proportion to the
The object of this action was to make the defendant bank liable for amounts contributed by them respectively to the capital of the
the value of £7,828 railway debenture stock, which had been misapproin other words, that each holder of £20 stock ought to receive four times priated by Bartle Goldsmid, a stockbroker, under these circumstances. as much as the holder of a $20 share.
The stock was vested in Goldsmid and two other persons as trustees upon THE COURT OF APPEAL (Cotton, Bowen, and Fry, L.JJ.) affirmed the
certain truets, Goldsmid being the acting trustee. He was in the habit decision, being of opinion that the equitable mode of division was in
of suggesting and carrying out changes of investments, and early in 1882 proportion to the amounts of the contributions by means of which the
he proposed to his co-trustees to sell this stock and re-invest the proceeds, property which was purchased had been created.- COUNSEL, Rigby, Q.C.; transferees for a consideration of 5s. This transfer, together with the
with the result that they executed a deed of transfer of the stock to two R. S. Wright and Ĉ. A. Reeve; Sir H. Davey, Q.C., Barber, Q.C., and certificate of the stock, was deposited by Goldsmid with the bank with Ingle Joyce. Solicitors, Trinders ; Hollams, Son, f. Coward.
whom he dealt, as part security for a large advance to him for his private
purposes, the transferees' names being trustees for the bank, who underSYMONDS v. SYMONDS–C. A. No. 2, 29th June.
stood that Goldsmid's authority was, not to sell to the bank, but only to APPEAL FROM Order MADE BY JUDGE IN CHAMBERS–CERTIFICATE BY mortgage. When the advance was repaid the bank did not re-transfer to
JUDGE THAT HE DESIRES NO FURTHER ARGUMENT—JUDICATURE Act, the three transferors, but by the direction of Goldsmid, and without 1873, s. 50.
communicating with the other two, caused the stock to be transferred to This was an application for leave to set down an appeal from an order a purchaser from Goldsmid, and handed him the certificate. Goldsmid made by Chitty, J., in chambers, without any certificate from him that he thus received the purchase-money for the stock, which he invested in the had heard the case fully argued, and did not desire to hear any further purchase in his own name of the other stock which he had suggested to argument. He had declined to give the certificate when application was
his co-trustees. This stock he afterwards sold and appropriated to his made to him for it, and had said that the applicant must move in court to thereupon brought this action against the bank to make them account for
own use, and then became bankrupt and absconded. His co-trustees discharge the order. It was urged that the question (which was whether
the value of the stock. the action should be tried with a jury) had been, in fact, fully argued in chambers, and that the result would be only to inflict unnecessary costs on
KAY, J., held that the bank was liable for the value of the stock at the
time when they transferred it to the purchaser from Goldsmid. The kueliance was placed on Re Elsom (6 Ch. D. 346) as shewing that, under transfer by the trustees conferred, at most, an authority to sell to the such circumstances, the Court of Appeal would allow the appeal to be
bank. But the bank did not buy, and the sale to the actual purchaser heard without the certificate.
was entirely without the authority of the co-trustees of Goldsmid. The The Court of Appeal (Cotton and Fry, L.JJ.) refused the application. It was argued that the bank's breach of duty was not the proximate
bank was bound to have re-transferred the stock to the three transferors. They said that in Re Elsom it was laid down that the Court of Appeal cause of the less, for that Goldsmid had re-invested the proceeds of sale, would dispense with the certificate of the judge if they were satisfied by and, although in his own name only, that the trustees had intended a sale present case they were not satisfied that Chitty, J., did not desire to hear only have been as against Goldsmid. The proceeds of sale had never
of the stock, and might have claimed the re-investments. But that could further argument. —Counsel, Oswald. SoliciTOR, "T. Lamartine Yates.
been properly invested or secured to the trust, and this was owing to the BANKES v. SMALL-C. A. No. 2, 17th June.
breach of duty by the bank. No doubt the co-trustees ought to have VENDOR AND Purchaser-Covenant for furtuer Assurance-Conver- negligence on their part had in any way caused the loss. The immediate ANCE OF BASE FEE BY TENANT IN TAIL IN REMAINDER-COVENANT TO Exe cause was the dishonesty of Goldsmid in selling the stock without SUTE DISENTAILING DEED-SUKSEQUENT Death of TENANT FOR LIFE- authority, and in this act the bank concurred. They were, therefore, SPECIFIC PERFORMANCE-3 & 4 WILL. 4, c. 74, s. 47. niebis, action was brought for the specific performance of a covenant Q.c., and G. Henderson ; Rigby, c. c., and Farwell : Renshaw, 2.c., and intered into by the defendant in a conveyance to the plaintiff, that he and Ingle Joyce. Solicitors, Futvoje, Field, f Baker , Siretton, Hilliard, Dale, his mortgagee (who joined in the deed) and every person having or f Newman ; Norton, Rose, Norton, f Co. claiming any estate, right, title, or interest in or to the premises conveyed, or any of them, through or in trust for them, or either of them, would at OAKEY & SONS v. DALTON-Chitty, J., 18th June. all times, at the cost of the defendants, his heirs or assigns, "execute the further or more perfectly assuring all or any of the said premises to there wash disentailing and other assurance and do every such thing you TRADE-Mark—INFRINGEMENT–Survivor—RIGHT OF Executors to Con
TINUE ACTION-INJUNCTION-TRADE-MARKS Act, 1875, ss. 2, 4.
In this case the plaintiff had instituted an action against the defendant required. The defendant was formerly tenant in tail in remainder of the for infringement of a trade-mark registered by the plaintiff under the property, his father being tenant for life and protector of the settlement. | Trade Marks Act of 1875, claiming an injunction, account, and damages.
in point of fact, only one mortgage in existence. Ex parte Williams (16 of the testatrix until her death. She had been informed of the deposit of
The plaintiff having died, the action was continued by his executors, but hands to the use of another who owed him a debt, was in any better the defendant raised the point of law that the action was extinguished by position because he had the money in his hands, unless he had a legal the plaintiff's death, being an action grounded on a tort, and, therefore, right of retainer. (2) The claim was based on “natural justice.” That within the maxim actio personalis, &c. He also contended that the execu- might be a good argument to address to the Legislature, but a judge tors could not sue for an injunction until they had caused themselves could only deal with the law of the land. But his lordship agreed with to be registered as owners of the trade-mark. The executors stated that what Jessel, M.R., said in Talbot v. Frere (9 Ch. D. at p. 571): "I should it had been held, even in the time of George II., that the right to a trade. have thought equity and natural justice were exactly the other way. mark passed to personal representatives : Giblett v. Read (9 Mod. 459); There can be no natural justice in allowing one creditor of a testator, Sebastian on Trade-Darks, 2nd ed., p. 96.
simply because he happens to have a mortgage, to retain the balance in CHITTY, J., said that he was of opinion that the cause of action con favour of himself to the prejudice of the other crediters, thus virtually tinued to the executors, because the estate which they had received from their giving himself another mortgage. If a man has a mortgage on a dead testator was alleged to have suffered by the wrongful acts of the defend man's property, and he realizes the property and pays off the mortgage ant. The executors, therefore, were entitled to enforce compensation. That debt and has a surplus, surely, according to natural justice, the sur. being so, it was not necessary to decide the question as to the executors' plus ought to belong to the dead man's estate, to be divided among the right to sue for an injunction.-Counsel, Romer, Q.C., and Willis Bund ; creditors. fle is only a bare trustee of the surplus." (3) The third Aston, Q.C., and Bardswell. SOLICITORS, Paddison, Son, $ Co., Horne f ground was a legal one-viz., that the trustees had a right of set-off. The Birkett, for Thos. Chorlton, Manchester.
right of set-off must depend either upon agreement or upon statute. At
common law there was no right of set-off as between two persons each of FOLI v, DEVONSHIRE CLUB-Ohitty, J., 20th June.
whom had a right of action against the other. A tender of the balance
by the person who owed the larger sum would not be a legal INJUNCTION-OBSTRUCTION OF VIEW_METROPOLIS BUILDING Act, 1855, s. tender. There was in the present case no agreement for a set-off, 26, R. 5-METROPOLIS MANAGEMENT Act, 1882, s. 13.
and it was clear from decided
that there could be no In this case the plaintiff sought an interim injunction restraining the statutory right of set - off of a debt due by a testator in his defendants from erecting a wooden stand in such a way as to obstruct the lifetime, for which the executor was never personally liable, against plaintiff's view of the Jubilee procession. The pla ntiff submitted that a debt in respect of which the testator had no right of action in his under rule 5 of the Metropolis Building Act, 1855, 8. 26, the defendants lifetime. If the power of sale had been exercised by the mortgagees during had no right to construct any projection só as to intercept the line of the testator's lifetime, and they had received more than sufficient to satisfy view of owners or occupiers of adjacent houses. The defendants had their mortgage debt, and the testator had claimed the surplus, unquesobtained from the Metropolitan Board of Works a licence under the tionably there might have been a right of set-off against arrears of the Metropolis Management Act, 1882, s. 13, authorizing the erection. annuity due from him. Rees v. Watis (11 Ex. 410); Lambarde v. Older (17
CHITTY, J., said that it was well established that an injunction would Beav. 542); Newellv. The National Provincial Bank of Englund (1 C.P. D.496); not go to an amenity of view. The rule relied upon by the plaintiff was
and Hallett v. Hallett (13 Ch. D. 232) were clear authorities that the defendant made by the board for its own guidance and was not an enactment binding to an action by an executor (suing as euch) for a debt becoming due after on all persons. Moreover, by section 13 of the Act of 1882 the board the testator's death could not set off a debt due to him from the testator were intrusted with the power of granting licences, presumably because it in his lifetime. But the trustees relied on three cases. The first was was contemplated that in doing so the board would consider the interests Spalding v. Thompson (26 Beav. 637), but the decision of Lord Romilly, of all parties. He declined the injunction, but costs would be costs in M.R., in that case was based on grounds which entirely distinguished it the action.-COUNSEL, Birrell ; Byrne.
from the present case. The next case was Re Haselfoot's Estate (L. R. 13
Eq. 327), the facts of which were very similar to those of the present case. Re GREGSON, CHRISTISON v. BOLAM.-North, J., 25th June.
Lord Romilly, M.R., there said that he thought Spalding v. Thompson was
precisely in point, and that it had not been reversed or doubted; that he MORTGAGOR AND MORTGAGEE-POLICY OF INSURANCE-SURPlus Proceeds, thought his decision there right, and that he must be bound by it. North,
SET-OFF AGAINST UNSECURED Debt or DECEASED MORTGAGOR, J., said that he had already pointed out that Spalding v. Thompson was The question in this case was whether the mortgagees of a policy of based on an entirely different state of facts. But the ground of Lord insurance on the life of the mortgagor were entitled after his death to Romilly's decision in Re Haselfoot's Estate was that he was bound by apply the surplns proceeds of the policy, beyond the amount due upon Spalding v. Thompson. He went on to give reasons for his decision, but it their mortgage, to the payment of an unsecured debt due to them from his
was clear that the report could not be relied on, for some passages in the estate.
In 1847 the mortgagor, in consideration of a sum of £28,000 lent judgment were quite unintelligble. But Lord Romilly did not treat it as to him by an insurance company, granted to trustees for the company an
a question of set-off. The third case, which was the only one, so far as annuity of £1,790 for the term of ninety-nine years, if he should so long his lordship was aware, in which Re Haselfoot's Estate had been followed, live, the annuity being made payable quarterly. The mortgagor
was Ex parte National Bank (14 Eq. 507). That case was not really covenanted to pay the annuity, and charged it upon his life estate in any authority, for the point was not argued, and though Malins, V.C. certain real estate. The annuity was futher collaterally secured by a said (p. 516): “ It seems to me, on this general principle, that if A. warrant of attorney to enter up judgment against the mortgagor for creates a mortgage in favour of B., and, the mortgage being realized, be $56,000, under which judgment was entered up, but, inasmuch as the has the balance in his hands, natural justice would seem to point out that judgment was never registered in compliance with 23 & 24 Vict. c. 38, it he would be entitled to retain the surplus and apply it in payment of & became ineffectual. In 1881 the mortgagor borrowed another sum' of general debt due to him,” that was a mere obiter dictum upon a point which £4,000 from the same insurance company, and to secure it he mortgaged had not been argued, and which was not necessary to the decision of the to their trustees a policy of insurance for £5,000 on his own life, which case, and too much weight must not be attributed to it. These three cases did he had effected with another insurance company. The mortgage deed not furnish authority for the present case. But the decision of Jessel, contained an absolute assignment of the policy to the trustees, subject to M.R., in Talbot v. Frere (9 Ch. D. 568) was precisely in point. It was a proviso for redemption on payment of £4,000 and interest, in which case
immaterial in the present case whether the insurance company were or the mortgagees were to re-assign the policy to the mortgagor, his executors,
were not trustees for the mortgagor, for they had clearly no claim under administrators, or assigns. There was a power for the mortgagees to sell
their security which had been satisfied. They held the surplus moneys to the policy, and, after retaining out of the proceeds of sale the amount the use of the mortgagor's executor, and, there being no right of set-off, which should be due to them on the security, they were to pay the
the executor's claim to be paid these moneys was well founded.— Counsel, surplus (if any) to the mortgagor, his executors, administrators, or assigns.
Cozens-Hardy, Q.C., and Warrington ; Napier Higgins, Q.O., and W.C. There was no express provision for the case of the death of the mortgagor, Druce. Solicitors,' Crossman, Crossman, Prichard ; Burrows 8 Barnes. and the receipt of the policy-moneys by the mortgagees. The mortgagor died in September, 1885, insolvent, and this action was brought for the administration of his real and personal estate.
Re RICHARDS, SHENSTONE v. BROCK-North, J., 28th June. been exercised, and the mortgage debt of £4,000 was still due. Two VOLUNTARY Gift-CoMPLETION or GirtCreation of Trust—DELIVERY quarterly instalments of the annuity of £1,790, and an apportioned part of a
or PROMISSORY NOTE ON CONDITION. third instalment, were also due, and, the mortgagor's life estate having The question in this case was whether a testatrix had made an effectual come to an end, those instalments constituted an unsecured debt. The voluntary gift of a promissory note signed by herself, or had constituted mortgage, à surplus of £812 remained in their hands, and they claimed to keeper. Lav 1917 ne testatrix consulted C., her solicitor, whom she had policy, and, after satisfying what was due to their company under the testatrik gave a legacy of niso toe., who was in her employment as homosed retain this surplus in part satisfaction of the unpaid arrears of the annuity, which amounted to £1,099. By arrangement the question whether the
appointed one of her executors, as to further benefiting E. beyond what
she had given her by her will.' Ultimately, the testatrix handed to CA gagor's executor by means of a summons in the administration action. to E., telling C. not to mention the note to anyone but E., but to retain
NORTH, J., held that there was no such right of retainer. that the claim of the trustees w
He said it in his possession until the death of the testatrix, and then to give it to
to hold the surplus of the moneys as security for a debt the security for which had ceased to exist.
E. “if she should remain in the service of the testatrix until her death." ndmitted that there could be no consolidation of mortgages, there being,
C. retained the promissory note until after the death of the testatria,
who gave him no further direction about it. Ch. D. 117) was an authority for that, and it also shewed that the unsecured debt could not be tacked to the secured debt.
the note with C., and she stated that the testatris had promised to make The claim of the a provision for her in addition to what she had done by her will, if she would
E. continued in the service
They, no doubt, had the money, but they clearly held it to the use of the
was entitled to be paid £200 out of the estate by virtue of the note. Her