great want of caution, for during a period of two years they were selling these goods and exhibiting samples, and yet they did not take the trouble as business men to ascertain what the wrappers on the bottles contained. The defendants, therefore, had to some extent brought the litigation on themselves. As regarded the case of Newman v. Pinto, 57 L.T.N.S., to which Mr Justice Kerferd referred, I am of opinion that it does not apply. That case was not tried before a jury, but was an appeal from the decision of the primary judge. HOLROYD, J.—I do not differ from the result arrived at by the Court; but I think the decision might be sustained on a ground different from that suggested by the Chief Justice and my brother Williams. I think the definition of good cause in Jones v. Carling, 13 Q.B.D. 262, followed by Harnett v. Vise, 5 Ex. Div., 307 is too narrow. That definition seems to me to exclude cases in which a successful plaintiff or defendant has been found guilty of conduct contrary to public policy, or calculated to injure or defraud the public. I think it would be good cause to deprive a successful plaintiff or defendant of his costs if he had been not guilty so far as the other party was concerned, but guilty towards the general public. In the present case, in the amended statement of claim, the plaintiff charged the defendants with having by the use of bottles similar in shape, size, and colour to the plaintiff's, and by the use of a wrapper ing to deceive the public into believing it is an article which it is not. I am not prepared to say that there was no evidence from which the judge could conclude that the defendants did know that this wrapper was being used on the bottles containing these false statements. If they did not know they ought to have known, and were just as culpable as if they did know. No man has the slightest right to sell articles enclosed in wrappers or containing circulars packed up with them, and say he knew nothing about them, and took no pains to ascertain what was the statement on the wrappers. It was his bounden duty to take care and not cheat the public into believing that the article was something totally different from what it really was. He was not to be allowed to state that he did not know, and that the packer put them in. In this case the trade had been going on for four or five years, and the defendants did not trouble themselves to see whether the public was being cheated or not by the vending of a spurious article. On that ground I think the judge would be justified in refusing the defen lants' costs, as their wrappers contained similar false statements to that which they charged the plaintiff with using. Appeal dismissed, without costs. Sept. 24. PEARSON V. RUSSELL. Real Property Statute 1864 No. 213; Real Property (Amendment) Statute 1885 No. 873, Adverse possession. The Real Property (Amendment) Statute 1885 No 873 is limited in its operation towards further declaring the first portion of the 19th Sec. of the Real Property Statute 1864 dealing with dispossession and discontinuance of possession. similar to the plaintiff's, intended to induce purchasers (Before Higinbotham C.J. Williams and Holroyd J.J.) to believe that the defen lants' goods were the plaintiff's. The defendants denied that altogether, and in their amended statement of defence raised a charge of a different kind of fraud against the plaintiff. They said in effect, "Suppose we have fraudulently intended to deceive purchasers into believing that oar article was yours, nevertheless you have no right to relief, because you tried to make the people believe that your article was manufactured in a particular manner and possessed peculiar virtues, and that you were the sole inventors, all which statements are false. You are, therefore, not entitled to relief against us, as you tried to cheat the public." The plaintiff replied "If I have so have you done precisely the same thing as regards the public." The plaintiff's wrapper contained a number of statements concerning the manufacture of the schnapps, the materials of which it was composed, and its various qualities. The defendants made similar statements regarding the articles they sold. The jury found, as regarded the plaintiff, that some of their statements were false in fact, and if they were false, so were similar statements of the defendants. If the public were deceived in one case, there was no reason to suppose that they were not equally deceived or that they might have been deceived in the other. Certainly the defendants' wrapper was as much calculated to deceive as the plaintiff's was. The jury found that statements in the plaintiff's wrapper were false. As regards the defendants' wrapper, I do not think that they found any thing at all. They answered the question put to them-that it was not intended to deceive the public into believing it was the plaintiff's article. That is quite a different thing from attempt Questions of law referred to the Full Court. This action was brought to recover possession of land. The plaintiff was sole heiress-at-law of Robert Henry Newby, who died on 30th March 1851, intestate. The defendant took possession of the land in or about 1873. The plaintiff was absent beyond the . seas at that time and at the time that Newby died, and had never been in Victoria. The plaintiff claimed possession of the land, and mesne profits from 1st June 1874. In defer ce defendant said he was in possession by himself. He objected that upon the allegations in the Statement of Claim, even the same were true, the plaintiff was not entitled to possession of the premises, inasmuch as upon such allegations her title and right of entry had been destroyed and lost by reason of the provisions of Part II of the Real Property Statute 1864. An order was made by a judge in Chambers that the points of law raised by the pleadings should be heard before the Full Court prior to the trial of the action the costs of the argument to be costs in the Cause. Higgins, for the plaintiff :-Defendant has only been in possession 14 years. The Real Property (Amendment) Statute 1885 No. 873 applied to persons claiming the interest of a deceased person as well as to other claims in sec, 19 of Real Property Statute 1864 No. 213. The Amending Act was retrospective. The Privy Council had recently decided in Trustee Executors and Agency Co. v. Short that adverse possession did not run till the land had been taken possession of adversely to the claimant under a documentary title. That case conflicted with May v. Martin 11 V.L.R. 562. Isaacs, for defendant :-The Amending Act is not declaratory, but is new legislation, and even if it were declaratory it only referred to the first class of cases mentioned in sec. 19, and did not refer to a claim arising out of the death of another person. After 30 years, that is in 1881, the plaintiff's title was absolutely extinguished by secs. 32 and 43, and therefore it is immaterial what title the defendant had. Plaintiff's title was extinguished before the passing of the Amending Act, which is not retrospective. On the construction of the section see Wilton v. Barrett 9A L.T. 181, possession of this land. The plaintiff's right, in our opinion began to run from the date of the death in 1851, and by the 32nd section expired in 1881, when by section 43 the right and title of the plaintiff to the land for which an action might have been brought was absolutely extinguished. We are of opinion, therefore, that on the allegation in the statement of claim, assuming the same to be true the plaintiff is not entitled to the possession of the land. HOLROYD, J. I desire to add that in using the word "discontinuance" in May v. Martin, 11 V.L.R., 590, I stated that in my opinion it was in most cases convertible, with the term "abandonment" in the first class of cases in section 19, but discontinuance in which death operates really refers to the second class of cases in that section. SUPREME COURT SITTINGS. Before Higinbotham, C. J. OCT. 9th, 15th. HIGGINBOTHAM V. BARRETT, per Webb J.; Vansittart v.Taylor 4 E. and B. 913 Will-Construction-Vested interest. per Pollock, C,B.; Moon v. Duerdin 2 Ex. 22. (He was then stopped by the Court.) Higgins (in reply.) In May v. Martin, the view of Holroyd, J. seems to be that death is a discontinuance Per Curiam. We are of opinion that Act No. 873 is already shown by the recitals in the preamble to be limited to the class of cases mentioned in the first portion of the 19th sec. of the Real Property Statute, 1864, namely, cases in which the question arose at what time dispossession or discontinuance of possession took place. We are of opinion that both the first and second sections of the Act No. 873 are limited to further declaring that first portion of the 19th section, and in that view it is unnecessary to consider what may be the effect of the introduction of certain words in the first or second section as whatever that effect might be it was limited to this class of cases. This determines the question we have to consider, for here the claimant by her statement of claim brings herself within the second class of cases mentioned In section 19 by alleging that she is the sole heiress at law of Robert Henry Newby, who died intestate on 30th March, 1851, and that as such she was entitled to the fee simple and to A testator by his will devised certain lands trustees upon trust, subject to the payment of certain annuities, &c., to accumulate the rents for all the children of his (the testator's) son, who should be living at the death of the testator, until the youngest of them should attain the age of 21 years, at which period he directed his trustees to sell the property and divide the proceeds of such sale and such accumulations amongst the children equally. He further declared that in case any of the children should die before he or she should be entitled to receive his or her share, without issue, then the trustees should hold such share upon trust for the survivors or the survivor. Held that under the terms of the will the children of the testator's son living at the time of the testator's death took a vested interest in the property as from the death of the testator. Action by Ellen Higginbotham and others against Edward Barrett and Peter Johns to obtain a declaration by the Court as to the trusts of the will of Thomas Higginbotham, deceased. By his will (as the age far as is material to this report) the testator devised is brought for the purpose of obtaining a declaration of certain of the trusts of the will of Thomas Higginbotham, relating to a part of the property of the testator, situated in Swanston Street, Melbourne. The will, which is dated March 25, 1875, directs the trustees, subject to the payment of certain annuities and the discharge of encumbrances to accumulate the rents of this property, and to apply the accun ulations when they amount to L2000 to the rebuilding of shops thereon. The will then proceeds "subject as aforesaid to accumulate the said rents of my said Swanston Street property for all the children of my said son William Higginbotham, lawfully begotten, who shall be living at my decease, until the youngest of them shall attain the age of 21 years. when I direct and empower my said trustees to sell my said Swanston Street property by public auction or private contract, and to make and execute a conveyance or conveyances to the purchaser, and after deducting all costs, charges, and expenses in the execution of the trusts of my will and of the power of sale hereby given to divide the proceeds of such sale or sales, together with the accumulation of rents, if any, of my said Swanston Street property between and among all the said children of my son William Higginbotham who shall be living at my decease, equally between them, share and share alike. Provided-And I hereby declare that in case any of the said children of the said William Higginbotham shall die before he or she shall be entitled to receive his or her share or interest under this my will, without leaving lawful issue of his, her, or their bodies, then such share or interest shall be held by the trustees or trustee for the time being of this my will upon trust for such one or more of the said children of my son the said William Higginbotham as shall then be surviving in equal shares, when they shall be respectively entitled to their, his, or her original shares, and every share or shares so thereby directed to survive, shall from time to time survive together with the original share or shares." One of the children, Charles Thomas Higginbotham, living at the decease of the testator, died on August 23, 1887, intestate and without having married. I think that under the terms of the will all the five children of William Higginbotham living at the time of the testator's death on October 29, 1876, took a vested interest in this property by gift as from the testator's death. The corpus consisting of the proceeds of sale and the accumulations of rents would not be divisible until the youngest child attains the age of 21 years. But each child is entitled in the meantime, on coming of age, to a proportionate part of the net rents and accumulations. I will make an order in this case similar to that made by Webb, J., in the case of Lazarus v. Lazarus, to which I have been referred. Declare that the four surviving children of William and Ellen Higginbotham, that is to say, William John, Ellen Anne, Herbert Edward, and James Henry, take as from the death of the testator vested His Honor in giving judgment said :--This action interests in the Swanston Street property and in the Goldsmith for the plaintiffs:-The children take vested interests from the death of the testator; Lazarus v. Lazarus (decided by Webb J. unreported). "The principle on which the court acts is set out in Havelock v. Havelock (L.R., 17 Ch., D. 807). The adult children are entitled to be paid a proportionate share of the accumulations and of the rents arising from the premises. [I. Jarman 4th Ed., 805; Lewin on Trusts 689; Saunders v. Vautier, Cr. & Ph.; 240; Sturges v. Pearson, 4 Madd. 411; Roebuck v. Dean, 2 Vesey 294; Perry v. Woods, 3 Vesey 204, cited.] Topp for the defendants -The children took an equitable vested interest as tenants in common at the death of the testator. Cur adv vult. proceeds of sale and accumulations of rents thereof. Direct the trustees to pay to William John, now adult, and to each of the other children as he or she shall attain the age of 21 years, the income arising from his or her share during minority or since in the Swanston Street property and the accrued accumula tions therefrom, and from his or her share in the income and accumulations on the share of Charles Thomas Higginbotham; and in the meantime to apply out of such income and accumulations of each of the infants the sum of L50 a year in addition to the amount previously allowed by the Court to his or her maintenance, support, and education. Refer to the taxing officer to tax as between solicitor and client the costs of both parties to this action, also the costs of and occasioned by an application made to A'Beckett, J., herein on June 28, 1888, and let the costs of the action and of and occasioned by such application, when so taxed, be paid out of the rents and accumulations of the Swanston Street property. Reserve liberty to apply. and could not be exercised by his administratrix. Action instituted by Jane McKendrick against Robert Edward Lewis and David McKendrick to obtain (inter alta) a declaration by the Court as to her right as administratrix of John McKendrick deceased to certain premises in the Will of James Mitchell McKendrick deceased mentioned. By his Will, dated the 6th August, 1885, James Mitchell McKendrick granted to his sister Lillias Bowes a life interest in the rents and profits of his three cottages being Nos. 146, 148 and 150 Spencer Street Melbourne (which were vested in fee-simple in the defendant, R. E. Lewis in trust for the testator his heirs and assigns). The testator made a disposition of the remainder in No. 146, which it is not material to this report to state; but with regard to Nos. 148 and 150, and the land on which they stand he went on to say. "I grant to my said nephew 'i.e. John McKendrick,' the option to be declared by him in writing to my executor within 6 months from the date of my death to pay the sum of £500 in cash to Solicitor for plaintiffs, W. H. L. Roberts; solicitor my executor in Melbourne within 9 months from the for defendants, W. H. C. Darvall. date of my death, and to take the said cottages absolutely in which case I devise the said lands and cottages subject to Mrs. Bowes' life estate to my said nephew and his heirs absolutely. And I bequeath the said £500 less charges for exchange and probate duty to my dear brother David McKendrick of Cross Hill, Glasgow, out of business absolutely, but in case the said John McKendrick exercises his option declining to pay the said sum of £500 and take the property or in case he accepts but from any cause whatever does not pay to my executor in Melbourne within 9 months from my death the said £500 then in either case I devise the said houses and lands to my brother and his heirs absolutely." The testator appointed R. E. Lewis executor and trustee. He died on the 28th Sept., 1885, and probate was granted to R. E. Lewis on the 2nd Nov., 1885. John McKendrick gave to the executor within the specified time a notice in writing of his intention to pay the £500. He died, however, without having paid the money before the expiration of the 9 months mentioned in the will. His widow and administratrix (the present plaintiff,) on the 24th June, 1886, also before the expiration of the 9 months specified in the will paid the £500 to the executor. Owing, however, to the directions of David McKendrick the executor refused to execute a conveyance of the land and cottages subject to the life estate of Mrs. Bowes, and the present action was consequently instituted. Higgins (with him Shiels) for the plaintiff :-The right of exercising the option was a personal right existing in the nephew, but the payment of the money was not intended to be done by him only. By the exercise of the option within the six months there was a complete contract between the testator and his nephew and it is contended not only that the administratix is entitled to the completion of the contract, but that if the case was reversed she would be bound to complete if called upon. There is nothing to show that the payment of the money was to be done by John M'Kendrick. In regard to the exercise of the option to purchase there are numerous cases. Lord Lilford v. Powys-Keck (30 Beavan 295, 299) shows that the court will not treat the payment of money as personal to the party. Evans v. Stratford (10, L.T.N.S., 713), and Mills v. Haywood (L.R., 6 Ch, D. 196), Alexander v. Cross (L. R., 30 Ch., D. 203), and Morrisey v. Clements (11, V.L.R. 13) are to the same effect. When the option is exercised the contract is complete Harwood v. Hillyard (2 Modern 268). In re Adams (L.R., 27 Ch., D. 394). Topp (with him Vasey) appeared for the trustees. Goldsmith for the defendant David M'Kendrick :The scheme of the will must be considered. No other people are mentioned in the will but the testator's sister, brother and nephew. As soon as the money is paid the estate of the nephew arises but not before. If there was a contract on the exercise of the option, the devise would never come into operation. There is only an inchoate estate on the exercise of the option. [Alexander v Cross, L.R., 30 Ch., D. 203, and Morrisey v. Clements, 11 V.L.R. 13, referred to.] As to costs, Morgan &. Daly (2nd Ed.) p. 169. Cur adv vult. HIS HONOR, in giving judgment, said :-In this case I have to determine the meaning of provisions of the will of James Mitchell M'Kendrick with respect to two cottages and land of the testator, numbers 148 and 150 Spencer-street, Melbourne. The question is one wholly of construction; there are no external circumstances which throw light on the intentions of the testator. The plaintiff is administratrix of John M'Kendrick, the nephew of the testator. The defendant Lewis is the executor of the testator. The defendant, David M'Kendrick, is the brother and the residuary devisee of the testator. John M'Kendrick, on March 4, 1886, and within six months from the death of the testator on September 28, 1885, declared his option given to him by the will. He died on May 7, 1886, and the plaintiff on June 24, 1886, and within nine months from the date of the testator's death, paid L500 in cash to the executor in Melbourne. The provisions of the will upon which the question between the parties arises are as follows: "I grant to my said nephew the option.. to be declared by him in writing, to my executor, within six months from the date of my death-to pay the sum of £500 in cash to my executor in Melbourne within nine months from the date of my death, and to take the said cottages absolutely, in which case I devise the said land and cottages subject to Mrs. Bowes' life estate to my said nephew and his heirs absolutely but in case the said John M'Kendrick exercises his option declining to pay the said sum of £500, and take the property, or in case he accepts, but, from any cause whatever, does not pay to my executor in Melbourne within nine months from my death the said £500, then, in either case I devise the said houses and land to my said brother and his heirs absolutely subject to Mrs. Bowes' life interest." The plaintiff asserts that the conditions of the grant have been complied with on the part of the deceased, John M'Kendrick, and that she is entitled as his administratrix to a declaration of her right to the cottages The defendant, David M'Kendrick, contends that John M'Kendrick did not properly exercise his right of option, inasmuch as he died without paying the sum of L500, and that the option being purely personal did not pass to his personal representative. The exercise of an option is an act of the will of a person; it is a personal act. If a right of option is the subject of testamentary grant, the right must be exercised in accordance with the conditions of the grant. In this case the right granted was an option to pay a particular sum of money to the executor within nine months from the death of the testator. The right was liable to be avoided at any time during that period by a declara tion by the grantee of his option declining to pay the sum of L500, or by his failure within the first six months to declare in writing his acceptance to the executor. Subject to these conditions I think that the grantee would retain under the terms of this will during the whole period of nine months the option to pay. The act to which the right of option is annexed by the words employed by the testator is not the declaration of the grantee's election to take advantage of the right given, but the final act by which the right is completed and secured. It has been argued for the plaintiff that as soon as John M'Kendrick declared his option to pay the L500 the declaration created a contract binding him and his estate and also the estate of the testator, and that the subsequent act of payment related only to the mode of carrying the exercise of the option into effect, and might therefore be done by the plaintiff as administratrix. The language of the will does not, in my opinion, admit this construction. The testator appears, by the terms he has used, to have contemplated the case of the grantee declaring his option to accept, and subsequently from some cause not fulfill ing his declared option by payment. I think that the testator intended that his nephew should be at liberty to retain during the whole period of nine months, if his life continued and if he so wished, the right of option to pay or not to pay the L500 within that period, and, as the exercise of such option would be a personal act, I am of opinion that payment by his representative would not be a compliance with the condition imposed by the testator. I order that judgment be entered for the defendants; that the defendant Robert Edward Lewis repay to the plaintiff the sum of L500 with interest accrued; and that the costs of all the parties taxed as between solicitor and client be paid out of the residuary estate. Judgment for defendants, costs of all parties as between solicitor and client to be paid out of the residuary estate of James M. M'Kendrick, Solicitors for plaintiff, Gaunson and Wallace; for defendant trustee, Crisp, Lewis and Hedderwick; for defendant, David McKendrick, A. W. Fergie. |