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and praying that it might be cancelled. She then filed a second bill, stating the above facts, and alleging that she had since seen the deed; and, finding that it contained a power of appointment, she had made an appointment to herself, that the defendant claimed to hold the deed as trustee, and praying that if the court, on the hearing of the first suit, should not be of opinion that the deed ought to be declared void, it would then order that it should be delivered up to her, and that the second suit might be treated as supplemental “so far as necessary or proper" to the first. The defendant demurred to the second bill on the grounds that, (1) the plaintiff should have amended her first bill instead of filing the second; (2) that the bill presented an alternative case. The demurrer was overruled. — Foulkes v. Davies, Law Rep. 7 Eq. 42.
See ATTORNEY, 3; COMPANY, 3; CONTEMPT, 3; Costs; INJUNCTION; LUNATIC; PRINCIPAL AND SURETY, 1; VENDOR AND PURCHASER OF REAL ESTATE, 3.
ESCAPE. By statute, a registrar in bankruptcy may act, in a commissioner's absence, as commissioner; but the general rules issued under authority of the statute provide that he shall not so act, unless by a request in writing, except in case of emergency, the nature whereof shall be entered on the proceedings. To an action for escape, the sheriff pleaded that the debtor had been released by order of a registrar. The plaintiff replied that the registrar had not been requested in writing to act as commissioner, nor had any emergency arisen, nor the nature thereof been entered on the proceedings. Held, on demurrer, that, if the order was voidable, it was not void, and protected the sheriff. - Hargreaves v. Armitage, Law Rep. 4 Q. B. 143.
ESTATE BY IMPLICATION. — See DEVISE, 3.
ESTOPPEL. The plaintiff sold shares in a company to W., the managing director of the company. On the settling day, W. gave the name of G. as the real purchaser, and the transfers were made and sent to him. W. also passed a check on the company's bankers for the amount of the purchase-money to the debit of G. and informed G. what he had done. G. refused to execute the transfers; but retained them till the company was wound up, and then handed them to the secretary as a security for the money carried to his debit. Held, that G. was estopped to deny that he was the purchaser of the shares, and that he must indemnify the plaintiff against the calls, and pay the costs of the plaintiff, and of W. – Shepherd v. Gillespie, Law Rep. 3 Ch. 764.
See COMPANY, 1; DIVORCE, 4; LANDLORD AND TENANT, 3; VENDOR AND PURCHASER OF REAL ESTATE, 3.
A memorandum by the registrar in bankruptcy on a composition deed, that the deed has been duly registered, pursuant to the provisions of the Bankruptcy Act, 1861, is prima facie evidence that an affidavit, pursuant to that act, was delivered to the registrar, together with the deed. — Waddington v. Roberts, Law Rep. 3 Q. B. 579.
See AWARD, 1, 2; BANKRUPTCY, 2; DIVORCE, 1, 3, 4; INSURANCE, 3; INTERROGATORIES; MESNE PROFITS, 1; NECESSARIES; PERPETUITY; PRESCRIPTION; PRESUMPTION; PRODUCTION OF DOCUMENTS; RAILWAY, 2; WILL, 2, 3.
EXECUTOR AND ADMINISTRATOR. 1. A will contained these words : “I leave the sum of one sovereign each to the executor and witness of my will for their trouble, to see that every thing is justly divided," but did not name any executor. Beneath the signature of the testator, and opposite the names of the attesting witnesses, were the words, “ executors and witnesses.” Held, that there was no appointment of executors. — Goods of Woods, Law Rep. 1 P. & D. 556.
2. A. having deposited certain title deeds with a bank as security for advances, by will empowered his executors to charge his real estates in aid of his personal estate. His widow and sole executrix was allowed to draw out other money as executrix on deposit of other title deeds of A.'s estate. The moneys were drawn out from time to time in small sums, and applied by the widow for her own expenses, as well as for A.'s debts. Held, that in absence of proof of notice to the bank of A.'s breach of trust, the bank was entitled to prove against the estate for their advances to the widow. – Farhall v. Farhall, Law Rep. 7 Eq. 286.
See CONFLICT OF Laws; NULLITY OF MARRIAGE; POWER, 2; PRINCIPAL AND SURETY, 1; SALE, 5.
EXECUTORY Trust. A testator gave jewels to A. "to be held as heirlooms by him, and by his eldest son on his death, and to descend to the eldest son of such eldest son, and so on to the eldest son of his descendants, as far as the rules of law or equity will permit. And I request A. to do all in his power, by will or otherwise, to give effect to this my wish." The testator left no real estate. Held, that this was a good executory trust for A. for life, remainder to B. (A.'s eldest son) for his life, and on the death of B., in trust for B.'s eldest son, to be a vested interest in him when he should attain twenty-one; but if he should die in B.'s lifetime, or after him under twenty-one, leaving an eldest son born before B.'s death, in trust for such eldest son, to be a vested interest, when he should attain twenty-one. Subject to these limitations, the jewels vested in A. absolutely. - Shelley v. Shdley, Law Rep. 6 Eq. 540.
FACTOR. An agent “intrusted with, and in possession of, goods," within the Factors Acts, is a person who is intrusted as agent for sale; and, consequently, one whose authority to sell has been revoked cannot pledge goods which had been intrusted to him for sale ; but which he has wrongfully retained after his authority has been revoked, and the goods demanded from him by his principal. (Exch. Ch.)- Fuentes v. Montis, Law Rep. 4 C. P. 93. See MARSHALLING OF Assets.
FALSE PRETENCES. — See LARCENY, 1.
FORGERY. - See LARCENY, 1.
FRAUDULENT CONVEYANCE. A trader, by a post-nuptial settlement, settled all his property, both present and future, on trust for his wife for her separate use for life, remainder for himself for life, remainder for his children, reserving the control of his stock in trade to himself. He had no debts at the time, except mortgages on the settled property, which were afterwards paid off. Five years later he became bankrupt. Held, at the suit of his assignees, that the settlement was void, under 13 Eliz, c. 5. Ware v. Gardner, Law Rep. 7 Eq. 317. See VOLUNTARY CONVEYANCE.
FRAUDS, STATUTE OF. - See CONTRACT.
FREIGHT. 1. The owners of the cargo advanced money to the master, and the master gave a receipt promising to pay the amount out of the freight. Held, that this was a loan, and not an advance of freight. - The Karnak, Law Rep. 2 Adm. & Ecc. 289.
2. The consignee of goods, before their arrival, indorsed the bill of lading to A. in these words: “Deliver to A., or order, looking to him for freight without recourse to us." The goods were delivered to A. In a suit by the ship-owners against the consignee for freight, it was admitted that the consignee would have been liable to A. for any freight paid by him. Held, that the burden of proof was on the consignee to show not only that the indorsement was on the bill of lading, when it was given to the captain, but that the captain in fact saw and assented to it. (Exch. Ch.) — Lewis v. M'Kee, Law Rep. 4 Ex. 58.
3. By a charter-party the charterer agreed to load "a full and complete cargo of oats or other lawful merchandise, and to pay freight, as follows: " 4s. 6d. sterling per 320 lbs. weight delivered for oats, and if any other cargo be shipped, in full and fair proportion thereto, according to the Baltic printed rates. The charterer put on board a full and complete cargo of flax, an article mentioned in the said rates, and paid the freight earned by the flax according to a scale derived from the tables which form the said rates. The ship-owners claimed, in addition, the difference between this amount and the amount which would have been earned by a full cargo of oats. Held, that flax being “lawful merchandise" within the meaning of the charter-party, the charterer had fulfilled his contract, and was therefore not liable for the additional freight claimed. — Southampton Steam Colliery Co. v. Clarke, Law Rep. 4 Ex. 73.
4. The defendant shipped cement under a bill of lading which stipulated that freight should be paid “ within three days after arrival of ship, and before delivery of any portion of the goods." The ship arrived with the cement, but was, within the three days, in consequence of an accidental fire, scuttled with a view of saving ship and cargo, and on her being raised the cement was found to be useless, having ceased to exist as cement, and the consignees refused to receive it or to pay freight. Held, that the ship-owners, not being ready to perform their part of the contract, could not sue for freight. — Duthie v. Hilton, Law Rep. 4 C. P. 138.
FRIENDLY SOCIETY. A member of a benefit building society obtained an advance on his shares on executing a mortgage by which he covenanted to repay the advance with interest by monthly subscriptions. The mortgage contained a power of sale in the event of the subscriptions falling into arrear, and the purchase-money was to be applied in satisfaction of all moneys then due or to become due from the mortgagor in respect of subscriptions, fines, or otherwise, under the mortgage, the surplus' to be paid to the mortgagor. The mortgagor having fallen into arrear, the premises were sold. Held (reversing the decision of GIFFARD, V.C.), that the mortgagor was not entitled to any discount on subscriptions not due, though the rules would have allowed him such discount in case of redeeming his mortgage before the expiration of the full period of payment. — Matterson v. Elderfield, Law Rep. 4 Ch. 207.
Gas. — See INJUNCTION, 1, 2; LARCENY, 3.
GiFt. A check was given by A. to B., and presented without delay. The bankers had sufficient assets of A., but refused payment because they doubted the signature. The next day A. died, the check not having been paid. Held, a complete gift, inter vivos, of the amount of the check. — Bromley v. Brunton, Law Rep. 6 Eq. 275.
GUARANTY. A. drew bills on B., who accepted them, and C. gave B. a guaranty that funds should be supplied to take them up. S. discounted the bills, being informed by A. of the guaranty ; but S. never notified B. or C. Held, that S. had no equity to claim as a creditor against C. on the guaranty. — In re Barned's Banking Co., Law Rep. 3 Ch. 753. See BANKRUPTCY, 4, 5; SALE, 5.
HEIRLOOMS. — See EXECUTORY Trust.
HUSBAND AND WIFE. 1. Land was held by a trustee on trust to sell and immediately divide the proceeds among certain persons, one of whom was a married woman. By a deed, in which the cestuis que trust joined, the trustee bought the estate. A. and her husband concurred in the deed, but it was not acknowledged under 3 & 4 Wm. IV. c. 74. A.'s husband received her share of the purchase-money. Held, that A., who had survived her husband, could have the deed set aside. — Franks v. Bollans, Law Rep. 3 Ch. 717.
2. In a settlement made on the marriage of a female infant, the husband covenanted that if his wife attained twenty-one, he would concur and would endeavor to induce her to concur in settling her real estate. This was never done. In 1862, after the wife was of age, the husband and wife mortgaged her real estate to secure money advanced to the husband. They both told the mortgagee that there was
no settlement; and though the person who acted as solicitor for both parties knew that there was, he concealed it with the acquiescence of the husband and wife from the mortgagee. In 1865, the mortgagee discovered the existence of the settlement. The mortgage deed, by mistake, was not effectually acknowledged by the wife till after the mortgagee had received notice of the settlement. Held, on a bill by the mortgagee, (1) that he was not affected by notice to the solicitor; and (2) that though the wife's estate did not pass to the mortgagee till after notice of the settlement, yet that she had been guilty of a fraud which bound her estate, and that the mortgagee had priority over those claiming under the settlement. — Sharpe v. Foy, Law Rep. 4 Ch. 35.
3. In a marriage settlement it was declared and the husband covenanted that if during the coverture any real or personal estate should come to or vest in the wife or the husband in her right, by devise, descent, gift, or otherwise, it should be conveyed and assigned by the husband and wife on the trusts of the settlement. Held, that a legacy given to the separate use of the wife was within the covenant. -- Campbell v. Bainbridge, Law Rep. 6 Eq. 269.
4. A power in a will for trustees to apply part of a fund settled for the separate use of a married woman for life, remainder for her children, at any period of her life for her advancement or benefit: Held, under special circumstances to authorize an advance to her husband, on his personal security, for the purpose of setting him up in trade. - In re Kershaw's Trusts, Law Rep. 6 Eq. 322.
See ALIMONY; CONTEMPT, 3; DIVORCE; ELECTION, 1; INJUNCTION, 5; NULLITY OF MARRIAGE; POWER, 2; Trust, 3; WIFE's EQUITY.
IGNORANCE OF Law. - See VOTER,
ILLEGITIMATE CHILDREN. 1. Testator, after a gift to “my son T.” (who was illegitimate), directed a division of his estate into seven parts, one of which he gave to his wife and after her death to “such of my children to whom the other six shares are given.” He directed those six shares to be paid “among all my children living at my decease, except my son T.” Testator left seven children, of whom two (T. and A.) were illegitimate. Held, that A. was not entitled to a share. — In re Wells's Estate, Law Rep. 6 Eq. 599.
2. An unmarried woman, by will, describing herself as a spinster, gave her property to her children. She had four illegitimate children, and in a codicil she described them by name. Held, that these children and not the next of kin were entitled to the property. -- Clifton v. Goodbun, Law Rep. 6 Eq. 278.
3. Testator gave a fund to his daughter M. for life, and after her death to all the children of M. begotten, or to be begotten, in equal shares. At the time of the testator's death M. had four children by A., whom the testator believed to be M.'s lawful husband, and after the testator's death M. had three more children by A. The marriage between M. and A. turned out not to be lawful. M. never had any legitimate children. Held, that the children born before the testator's death took under the gift, but those born after his death did not. — Holt v. Sindrey, Law Rep. 7 Eq. 170.
4. Illegitimate children of an unmarried woman described in the will by her maiden name, are entitled to share in a legacy to her“ and her two youngest daughters.” — Savage v. Robertson, Law Rep. 7 Eq. 176.